Opinion
Case No. 17-cv-05114-YGR (PR)
08-10-2018
LAJAZZ A. SMITH, Plaintiff, v. SALINAS VALLEY STATE PRISON, et al., Defendants.
ORDER OF DISMISSAL WITHOUT PREJUDICE
On July 5, 2018, the Court issued a Second Order of Dismissal With Leave to Amend. Specifically, the Court granted Plaintiff twenty-eight days from the date of the Order to file second amended complaint to allege facts sufficient to state a cognizable constitutional claim. Plaintiff was warned that the failure to file a timely second amended complaint would result in the dismissal of this action without prejudice.
The time for Plaintiff to file a second amended complaint has passed, and no such complaint has been filed. Taking into account the salient factors set forth in Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992), the Court finds that dismissal is warranted under Federal Rule of Civil Procedure 41(b). See Yourish v. Cal. Amplifier, 191 F.3d 983, 989, 992 (9th Cir. 1999) (affirming dismissal of action following plaintiff's failure to amend complaint after receiving leave to do so, where the interest in expeditious resolution of litigation, the court's management of its docket, and avoiding prejudice to defendants favored dismissal).
If and when Plaintiff is prepared to pursue the claims in this action, Plaintiff may file a new civil rights action. The limitations period to file a section 1983 action in California is two years, but it is tolled for up to two years during a continuous period of incarceration. See Silva v. Crain, 169 F. 3d 608, 610 (9th Cir. 1999) (holding, pursuant to Cal. Civ. Proc. Code § 340(3), that the limitations period for filing a section 1983 action in California is one year); S.B. 688 (amending Cal. Civ. Proc. Code § 340(3) and adding section 335.1 to establish two-year residual limitations period for personal injury actions); Cal. Civ. Proc. Code § 352.1(a) (providing for an additional two years of tolling during a period of continual imprisonment). --------
Accordingly, IT IS HEREBY ORDERED that the above-captioned action is DISMISSED without prejudice. The Clerk of the Court shall terminate all pending motions and close the file.
IT IS SO ORDERED. Dated: August 10, 2018
/s/_________
YVONNE GONZALEZ ROGERS
United States District Court Judge