Opinion
Case No. 3:20-cv-01728-DMS-MSB
01-28-2021
ELBERT LEE VAUGHT, IV, CDCR #H-56089, Plaintiff, v. B.D. PHILLIPS, Associate Warden; S. LIVELO, Assigned Case Records Analyst; RALPH DIAZ, Secretary of CDCR; M. POLLARD, Warden, Defendants.
ORDER:
(1) DISMISSING CIVIL ACTION FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2) AND § 1915A(b); AND
(2) DISMISSING FOR FAILING TO PROSECUTE IN COMPLIANCE WITH COURT ORDER REQUIRING AMENDMENT
Elbert Lee Vaught, III, ("Plaintiff"), a state inmate currently incarcerated at the Richard J. Donovan Correctional Facility ("RJD"), and proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 3, 2020. (See Compl., ECF No. 1.) / / / / / /
I. Procedural History
On September 16, 2020, 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 ECF No. 7 at 11-12.) Plaintiff was advised of his pleading deficiencies and granted 45 days leave in which to file an Amended Complaint that fixed them. (See id.)
Plaintiff's Amended Complaint was due on or before November 2, 2020. 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 September 16, 2020 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. Dated: January 28, 2021
/s/_________
Hon. Dana M. Sabraw, Chief Judge
United States District Court