Opinion
3:20-cv-02409-CAB-LL
12-02-2021
JACOBY C. HARPER #19746599, Plaintiffs, v. SAN DIEGO COUNTY, SAN DIEGO COUNTY JAIL, SAN DIEGO “PERSONS, ” Defendants.
ORDER DISMISSING CIVIL ACTION PURSUANT TO 28 U.S.C. § 1915(e)(2)(B)(ii) AND § 1915A(b)(1) AND FOR FAILING TO PROSECUTE IN COMPLIANCE WITH COURT ORDER REQUIRING AMENDMENT
Hon. Cathy Ann Bencivengo, United States District Judge.
On December 9, 2020, Plaintiff Jacoby C. Harper (“Harper” or “Plaintiff”), currently incarcerated at George Bailey Detention Facility (“GBDF”), filed a pro se civil rights action pursuant 42 U.S.C. § 1983. See ECF No. 1. Harper also filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See ECF No. 2. On March 15, 2021, the Court granted Plaintiff's IFP Motion and dismissed the Complaint for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). ECF No. 3. The Court gave Plaintiff 60 days to file a First Amended Complaint which would cure the deficiencies of pleading noted in the Court's Order. Id. at 7. On April 22, 2021, Plaintiff filed a First Amended Complaint but it too failed to state a claim upon which relief could be granted and was dismissed sua sponte pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b) on June 15, 2021. ECF No. 4. Plaintiff was again granted leave to amend, and reminded that if he did not, the Court would dismiss the entire case. Id. at 8.
Plaintiffs Second Amended Complaint was due no later than August 2, 2021. More than three months have elapsed since that time, but to date, Plaintiff 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).
CONCLUSION AND ORDER
Accordingly, the Court DISMISSES this civil action in its entirety based on Plaintiffs 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 June 15, 2021 Order requiring amendment. 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.