1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SHAWN ALBIN, Case No. 3:20-cv-00471-JAH-MSB CDCR #AV-4808, 12 Plaintiff, 13 ORDER DISMISSING CIVIL vs. ACTION FOR FAILING 14 TO PROSECUTE IN COMPLIANCE R.J. DONOVAN State Prison, SAN 15 WITH COURT ORDER DIEGO COUNTY JAIL, 16 Defendants. 17 18 19 I. Introduction 20 On March 12, 2020, Shawn Albin (“Plaintiff” or “Albin”), who is proceeding pro 21 se, was incarcerated at R.J. Donovan State Prison and filed a civil rights complaint pursuant 22 to 42 U.S.C. § 1983 in this Court. ECF No. 1. Albin did not prepay the civil filing fee 23 required by 28 U.S.C. § 1914(a), nor did he file a Motion to Proceed In Forma Pauperis 24 (“IFP”) pursuant to 28 U.S.C. § 1915(a). The Court dismissed the action on May 5, 2020, 25 because Albin had failed to either pay the $400.00 civil filing fee or file an IFP motion. 26 ECF No. 2. Albin was given forty-five (45) days to either pay the filing fee or submit a 27 properly supported IFP motion. Id. 28 1 On June 29, 2020, Albin filed an IFP motion. ECF No. 3. The Court denied the IFP 2 motion pursuant to 28 U.S.C. § 1915(g) because three of Albin’s prior § 1983 cases were 3 dismissed for being frivolous, malicious, or failing to state a claim, the “three strikes” rule. 4 ECF No. 4. The case was dismissed. Id. 5 On July 27, 2020, Albin appealed the dismissal to the Ninth Circuit Court of 6 Appeals, which concluded that one of the cases this Court relied on to dismiss the case 7 under § 1915(g) was not a strike. ECF Nos. 6–13. The case was remanded to this Court for 8 further proceedings. ECF No. 13. 9 On March 19, 2021, this Court dismissed this action for failing to either pay the civil 10 filing fee or submit a properly supported IFP motion. ECF No. 14. The Court explained to 11 Albin that he had not included a certified copy of his trust account statement in support of 12 his IFP motion, which is required by 28 U.S.C. § 1915(a)(2). Id. As a result, the Court 13 could not proceed until Albin either paid the civil filing fee or qualified to proceed in forma 14 pauperis. Id. In addition, the Court noted that Albin’s Complaint contained no factual 15 allegations and was therefore subject to dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B) 16 and § 1915A(b) for failing to state a claim. Id. at 3-5. The Court gave Albin forty-five (45) 17 days to either pay the fee or submit a properly supported IFP motion. Id. Albin was granted 18 two extensions of time to comply with the Court’s March 19, 2021 Order. ECF Nos. 15, 19 18. In its August 12, 2021 Order extending time, the Court directed Albin to pay the civil 20 filing fee and a Motion for Leave to File an Amended Complaint together with a proposed 21 First Amended Complaint by October 15, 2021. ECF No. 18 at 4. When Albin did not file 22 an Amended Complaint by October 15, 2021, the Court dismissed the case for failing to 23 prosecute. ECF No. 19. 24 On December 1, 2021, Albin filed a document entitled “Motion for Extension of 25 Time to File.” ECF No. 22. Then, on December 22, 2021, Albin filed a Motion to Vacate 26 the Court’s November 18, 2021 dismissal Order and a Motion for Extension of Time. ECF 27 Nos. 25–26. Albin stated he needed an extension of time to file an Amended Complaint 28 because Covid-19 protocols and lack of staff at the institution at which he is presently 1 incarcerated, California Health Care Facility (“CHCF”), prevented him from being able to 2 obtain his medical records and access the law library. ECF No. 22 at 2–4. On January 18, 3 2022, the Court construed Albin’s Motion for Extension of Time to File (ECF No. 22) as 4 a Motion for Relief From Judgment pursuant to Rule 60(b), granted the motion, and gave 5 Albin until March 4, 2022 to file an Amended Complaint and to satisfy the filing fee 6 requirement by either paying the civil filing fee or filing a properly supported IFP motion. 7 ECF No. 24. The Court denied Albin’s Motion to Vacate and Motion for Extension of Time 8 (ECF Nos. 25–26) as moot on March 1, 2022 because the Court had already granted Albin’s 9 motion for relief from judgment and gave him additional time to either pay the civil filing 10 fee or submit a properly support IFP motion. ECF No. 27. 11 Albin did not file an Amended Complaint by March 4, 2022. Instead, on April 4, 12 2022, Albin filed a document entitled “Motion Returning Documents/and for Access to the 13 Courts” and an IFP motion. ECF nos. 28–29.1 On April 15, 2022, the Court denied the IFP 14 motion because Albin had not provided the Court with a certified trust account statement 15 required by 28 U.S.C. § 1915(a)(2). ECF No. 30. The Court explained to Albin, as it had 16 done so before, that his case could not proceed until he had either paid the civil filing fee 17 or qualified to proceed IFP. ECF Nos. 2, 14. Albin was granted a final extension of time to 18 comply with the Court’s orders. ECF No. 30. 19 II. Discussion 20 Albin was given a final extension of time until June 14, 2022 to file an Amended 21 Complaint. ECF No. 30. To date, he has failed to amend, and has not requested another 22 extension of time in which to do so. “The failure of the plaintiff eventually to respond to 23 the court’s ultimatum–either by amending the complaint or by indicating to the court that 24 25 26 27 1 Albin titled the document “Motion Returning Documents” because he was inadvertently sent documents from a different case and seeks to return them to the Court. See ECF No. 28 1 [he] will not do so–is properly met with the sanction of a Rule 41(b) dismissal.” Edwards 2 v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). 3 III. Conclusion and Order 4 Accordingly, the Court DISMISSES this civil action in its entirety based on 5 Plaintiff’s failure to state a claim upon which § 1983 relief can be granted pursuant to 28 6 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1), and his failure to prosecute as required by 7 Court’s May 10, 2022 Order. 8 The Court further CERTIFIES that an IFP appeal would not be taken in good faith 9 pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final judgment of 10 dismissal and close the file. 11 IT IS SO ORDERED. 12 Dated: October 18, 2022 13 ______________________________________ 14 Hon. John A. Houston United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28