Opinion
23-CV-1294 JLS (JLB)
09-19-2019
KRISTOPHER G. FRENCH CDCR No. K-96643, Plaintiff, v. C. XIONG, Defendant.
ORDER DISMISSING CIVIL ACTION FOR FAILING TO STATE A CLAIM AND FOR FAILING TO PROSECUTE IN COMPLIANCE WITH COURT ORDER
HON. JANIS L. SAMMARTINO, UNITED STATES DISTRICT JUDGE.
I. Introduction
On July 5, 2023, Kristopher French (“Plaintiff”), who is proceeding pro se and currently housed at the Richard J. Donovan Correctional Facility, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 in this Court. See ECF No. 1. Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a); instead, he filed a Motion to Proceed In Forma Pauperis (“Motion”) pursuant to 28 U.S.C. § 1915(a). See ECF No. 2.
On July 19, 2023, the Court granted Plaintiff's Motion and dismissed Plaintiff's Complaint pursuant to 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A(b)(1). See ECF No. 5. The Court's Order allowed Plaintiff forty-five (45) days from July 19, 2023, to file an amended complaint. Id. at 8. The Court informed Plaintiff that if he failed to file within the time provided, the Court would dismiss the civil action based both on Plaintiff's failure to state a claim and his failure to prosecute in compliance with a court order requiring amendment. Id.
II. Discussion
Plaintiff's forty-five-day filing period expired on September 2, 2023. See id. To date, Plaintiff has neither filed an amended complaint nor requested an extension of time in which to do so. See generally Docket. “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, Inc., 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 19, 2023 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.