Harper v. George Bailey Detention Facility ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JACOBY C. HARPER Case No.: 3:20-cv-02409-CAB-LL #19746599, 12 ORDER DISMISSING CIVIL Plaintiffs, 13 ACTION PURSUANT vs. TO 28 U.S.C. § 1915(e)(2)(B)(ii) AND 14 § 1915A(b)(1) AND FOR FAILING 15 TO PROSECUTE IN COMPLIANCE SAN DIEGO COUNTY, SAN DIEGO WITH COURT ORDER 16 COUNTY JAIL, SAN DIEGO REQUIRING AMENDMENT 17 “PERSONS,” 18 Defendants. 19 20 On December 9, 2020, Plaintiff Jacoby C. Harper (“Harper” or “Plaintiff”), 21 currently incarcerated at George Bailey Detention Facility (“GBDF”), filed a pro se civil 22 rights action pursuant 42 U.S.C. § 1983. See ECF No. 1. Harper also filed a Motion to 23 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See ECF No. 2. On 24 March 15, 2021, the Court granted Plaintiff’s IFP Motion and dismissed the Complaint 25 for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. 26 § 1915A(b). ECF No. 3. The Court gave Plaintiff 60 days to file a First Amended 27 Complaint which would cure the deficiencies of pleading noted in the Court’s Order. Id. 28 at 7. On April 22, 2021, Plaintiff filed a First Amended Complaint but it too failed to 1 || state a claim upon which relief could be granted and was dismissed sua sponte pursuant 2 ||to 28 U.S.C. § 1915(e)(2) and § 1915A(b) on June 15, 2021. ECF No. 4. Plaintiff was 3 again granted leave to amend, and reminded that if he did not, the Court would dismiss 4 || the entire case. Jd. at 8. 5 Plaintiff's Second Amended Complaint was due no later than August 2, 2021. 6 || More than three months have elapsed since that time, but to date, Plaintiff has failed to 7 amend and has not requested an extension of time in which to do so. “The failure of the 8 || plaintiff eventually to respond to the court’s ultimatum—either by amending the complaint 9 by indicating to the court that [he] will not do so—is properly met with the sanction of a 10 || Rule 41(b) dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). 11 CONCLUSION AND ORDER 12 Accordingly, the Court DISMISSES this civil action in its entirety based on 13 || Plaintiff's failure to state a claim upon which § 1983 relief can be granted pursuant to 28 14 || U.S.C. § 1915(e)(2)(B)Gi) and § 1915A(b)(1), and his failure to prosecute as required by 15 || Court’s June 15, 2021 Order requiring amendment. The Court further CERTIFIES that 16 || an IFP appeal would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) and 17 || DIRECTS the Clerk to enter a final judgment of dismissal and close the file. 18 IT IS SO ORDERED. 19 Dated: December 2, 2021 € 20 Hon. Cathy Ann Bencivengo 21 United States District Judge 22 23 24 25 26 27 28 2 oo