Norvell v. Roberts ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANTHANEY LEAVONE NORVELL, Case No. 3:20-cv-0512-JLS-NLS CDCR #AA0214, 12 ORDER: (1) DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILING TO STATE vs. A CLAIM PURSUANT TO 28 U.S.C. 14 §§ 1915(e)(2) AND 1915A(b); AND S. ROBERTS, M.D.; JUSTIN B. KING; 15 (2) DISMISSING FOR FAILING MARCUS POLLARD, TO PROSECUTE IN COMPLIANCE 16 Defendants. WITH COURT ORDER 17 REQUIRING AMENDMENT 18 (ECF No. 8) 19 20 21 Plaintiff Anthony Leavone Norvell, while housed at the Richard J. Donovan 22 Correctional Facility (“RJD”) and proceeding pro se, filed this civil rights action pursuant 23 to 42 U.S.C. § 1983 on March 18, 2020. See Complaint (“Compl.,” ECF No. 1). 24 I. Procedural History 25 On May 11, 2020, the Court granted Plaintiff leave to proceed in forma pauperis but 26 dismissed his Complaint for failing to state any claim upon which relief could be granted 27 pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). See ECF No. 7. Plaintiff was 28 advised of his pleading deficiencies and granted forty-five (45) days’ leave in which to file 1 an Amended Complaint that fixed those deficiencies. Id. at 9–10. 2 On July 8, 2020, Plaintiff filed his First Amended Complaint (“FAC”). See ECF 3 No. 8. Once again, the Court dismissed Plaintiff’s FAC for failing to state any claim upon 4 which relief could be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). See 5 ECF No. 8. Plaintiff was again granted forty-five (45) days’ leave in which to file an 6 Amended Complaint to fix the deficiencies of pleading identified in the Court’s Order. Id. 7 at 8. 8 Even allowing for extra time due to the Plaintiff failing to initially receive the 9 Court’s August 4, 2020 Order,1 Plaintiff’s Amended Complaint was due on or before 10 October 19, 2020. But to date, Plaintiff has not filed an Amended Complaint, and has not 11 requested an extension of time in which to do so. “The failure of the plaintiff eventually 12 to respond to the court’s ultimatum–either by amending the complaint or by indicating to 13 the court that [he] will not do so–is properly met with the sanction of a Rule 41(b) 14 dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). 15 II. Conclusion and Order 16 Accordingly, the Court DISMISSES this civil action in its entirety without prejudice 17 based on Plaintiff’s failure to state a claim upon which § 1983 relief can be granted pursuant 18 to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and his failure to prosecute pursuant to Fed. 19 R. Civ. P. 41(b) in compliance with the Court’s August 4, 2020 Order. 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 26 1 The Court’s Order was initially returned “undeliverable.” (ECF No. 12.) However, the Court confirmed 27 Plaintiff’s address was correct with the CDCR and mailed another copy of the Order on September 4, 2020. (See ECF No. 12.) See also CDCR Inmate Locator, https://inmate.locator.cdcr.ca.gov (last visited 28 1 The Court further CERTIFIES that an IFP appeal would not be taken in good faith 2 || pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final judgment of 3 || dismissal and close the file. 4 IT IS SO ORDERED. 5 Dated: December 29, 2020 . tt 6 pee Janis L. Sammartino 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3