Opinion
3:21-cv-00680-GPC-LL
11-30-2021
KEVIN BARRIOS, BOOKING No. 20931063, Plaintiff, v. SAN DIEGO COUNTY SHERIFF'S DEPT., Defendant.
ORDER DISMISSING CIVIL
ACTION FOR FAILING
TO PROSECUTE IN COMPLIANCE
WITH COURT ORDER
Hon. Gonzalo P. Curiel, United States District Judge
I. Introduction
On April 16, 2021, Kevin Barrios (“Plaintiff” or “Barrios”), who is proceeding pro se, was incarcerated at the San Diego Central Jail and filed a civil rights complaint pursuant to 42 U.S.C. § 1983 in this Court. ECF No. 1. Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a). He did, however, file a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). ECF No. 2. On May 14, 2021, the Court denied Plaintiff's IFP motion because he had not provided the Court with a certified trust account statement, dismissed Barrios's Complaint pursuant to 28 U.S.C. § 1915(a), and granted him sixty days from the date of the dismissal Order to file a properly supported IFP motion. ECF No. 5.
On July 8, 2021, Barrios filed a renewed IFP motion. ECF No. 7. The Court granted Barrios's IFP motion and dismissed the Complaint for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Id. Barrios was given sixty days to file an Amended Complaint which cured the deficiencies of pleading noted in the July 8, 2021 Order. Id.
II. Discussion
Barrios's Amended Complaint was due on or before November 1, 2021. To date, he has failed to amend, 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).
III. Conclusion and Order
Accordingly, the Court DISMISSES this civil action in its entirety 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)(ii) and § 1915A(b)(1), and his failure to prosecute as required by Court's July 27, 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.