Opinion
Case No.: 3:20-CV-00931-TWR-KSC
11-05-2020
DAVID ERNESTO MACKEY, CDCR #C-56761 Plaintiff, v. THE PEOPLE OF THE STATE OF CALIFORNIA; WILLIAM D. MUDD, Judge Dept. 19; JEFFREY F. FRASER, Judge of the Superior Ct.; AMALIA L. MEZA, Judge of the Superior Ct.; CRAIG N. TEOFILO, Psy. D., Psychologist/Psychiatric, Defendants.
ORDER:
1) DISMISSING CIVIL ACTION FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. SECTION 1915(e)(2)(B)(ii)
AND
2) DISMISSING FOR FAILURE TO PROSECUTE IN COMPLIANCE WITH COURT ORDER REQUIRING AMENDMENT
David Ernesto Mackey ("Plaintiff"), a mentally disordered offender currently civilly committed at Coalinga State Hospital pursuant to California Penal Code Section 2972, is proceeding pro se in this civil rights action pursuant to 42 U.S.C. Section 1983. (See ECF No. 1, at 4, 50-52.) /// ///
I. Procedural History
On August 18, 2020, the Court granted Plaintiff leave to proceed in forma pauperis ("IFP") and dismissed his Complaint for failure to state a claim upon which relief could be granted pursuant to 28 U.S.C. Section 1915(e)(2)(B)(ii). (See ECF No. 4, at 8-9.) Plaintiff was advised of the deficiencies in his Complaint and granted 45 days leave in which to file an Amended Complaint fixing them. (See id.)
This case was originally assigned to the Honorable Gonzalo P. Curiel. On September 28, 2020, it was reassigned to the undersigned for all further proceedings. (See ECF No. 5.) --------
Plaintiff's Amended Complaint was due on or before October 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 relief may be granted pursuant to 28 U.S.C. Section 1915(e)(2)(B)(ii) and his failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b) in compliance with the Court's August 18, 2020 Order.
The Court further CERTIFIES that an IFP appeal would not be taken in good faith pursuant to 28 U.S.C. Section 1915(a)(3) and DIRECTS the Clerk to enter a final / / / / / / / / / / / / / / / judgment of dismissal and close the file.
IT IS SO ORDERED. Dated: November 5, 2020
/s/_________
Honorable Todd W. Robinson
United States District Court