Opinion
Case No. 3:16-cv-01426-WQH-BLM
04-05-2017
JASON HOLLINGSWORTH, CDCR #AX-5810, Plaintiff, v. CALIFORNIA DEP'T OF CORRECTIONS, et al., Defendants.
ORDER DISMISSING CIVIL ACTION FOR FAILING TO STATE A CLAIM 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
Jason Hollingsworth ("Plaintiff"), proceeding pro se, and while incarcerated at Richard J. Donovan Correctional Facility in San Diego, California, initially filed this civil rights action pursuant to 42 U.S.C. § 1983 on June 6, 2016, claiming that prison officials were in violation of the "Davis Bacon Act of 1931" and violated his right to equal protection under the laws. (See Compl. at 4-6.) / / / / / / / / / / / /
I. Procedural Background
On August 5, 2016, the Court granted Plaintiff leave to proceed in forma pauperis ("IFP"), but dismissed his Complaint sua sponte for failing to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). (ECF No. 5). The Court granted Plaintiff 45 days in which to file an Amended Complaint that cured these pleading deficiencies. (Id. at 8-9; see Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc) (noting that leave to amend should be granted when complaint is dismissed sua sponte under § 1915 "if it appears at all possible that the plaintiff can correct the defect.").)
Plaintiff filed his First Amended Complaint ("FAC") on August 24, 2016. (ECF No. 6). However, the Court once again found dismissal of the entire action appropriate on the grounds that he had failed to state a claim upon which relief could be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). (ECF No. 7). Again, the Court granted Plaintiff 45 days in which to file an Amended Complaint that cured these pleading deficiencies. (Id. at 6.)
More than 45 days has since passed since the Court's February 2, 2017 Order. Plaintiff has filed no Amended Complaint; nor has he requested an extension of time in which to do so. See Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004) ("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.").
II. Conclusion and Order
Accordingly, the Court DISMISSES this civil action in its entirety without further leave to amend 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 pursuant to FED. R. CIV. P. 41(b) in compliance with the Court's February 2, 2017 Order (ECF No. 7). / / /
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 to close the file.
IT IS SO ORDERED. Dated: 4/5/17
/s/_________
HON. WILLIAM Q. HAYES
United States District Judge