Opinion
Case No. 20cv2438-MMA-RBM
05-13-2021
MICHAEL ANDERSON, Booking #20924254, Plaintiff, v. SAN DIEGO SHERIFF'S OFFICE; GEORGE BAILEY DETENTION FACILITY; A. APEZ; OFFICER 4; MICHAEL R. BARNETT; OFFICER McDONALD, Defendants.
ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS;
[Doc. No. 2]
DISMISSING CLAIMS AND DEFENDANTS FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) AND 28 U.S.C. § 1915A(b)
Michael Anderson ("Plaintiff"), while incarcerated at the San Diego County Sheriff Department's George Bailey Detention Facility ("GBDF") in San Diego, California, and proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 on December 14, 2020. See Compl., Doc. No. 1. Plaintiff did not pay the fee required by 28 U.S.C. § 1914(a) when he filed his Complaint; instead, he has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). See Doc. No. 2.
I. Procedural History
On February 4, 2021, the Court granted Plaintiff leave to proceed in forma pauperis, but dismissed his Complaint for failing to state any claim upon which relief could be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). See Doc. No. 3. Plaintiff was advised of his pleading deficiencies and granted leave in which to file an Amended Complaint that fixed them. Id. at 10-11.
Plaintiff's Amended Complaint was due on or before March 21, 2021. But to date, Plaintiff has not filed an Amended Complaint, and has not requested an extension of time in which to do so. "The failure of the plaintiff eventually to respond to the court's ultimatum-either by amending the complaint or by indicating to the court that [he] will not do so-is properly met with the sanction of a Rule 41(b) dismissal." Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004).
II. Conclusion and Order
Accordingly, the Court DISMISSES this civil action in its entirety without prejudice based on Plaintiff's failure to state a claim upon which § 1983 relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and his failure to prosecute pursuant to Fed. R. Civ. P. 41(b) in compliance with the Court's February 4, 2021 Order. The Court further CERTIFIES that an IFP appeal would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final judgment of dismissal and close the file.
IT IS SO ORDERED. DATE: May 13, 2021
/s/_________
HON. MICHAEL M. ANELLO
United States District Judge