Opinion
Case No. 3:16-cv-02313-CAB-KSC
06-08-2017
BENJAMIN SPENCER, Booking #16143756, Plaintiff, v. CITY OF VISTA, 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
BENJAMIN SPENCER ("Plaintiff"), proceeding pro se, and while detained at the San Diego Sheriff's Department Vista Detention Facility ("VDF"), filed this civil rights action pursuant to 42 U.S.C. § 1983 on September 6, 2016, alleging excessive force at the time of his arrest, and negligence on the part of unidentified VDF staff when he was later attacked by a fellow detainee. (ECF No. 1 at 4.)
I. Procedural Background
On December 9, 2016, the Court granted Plaintiff leave to proceed in forma pauperis ("IFP"), but dismissed his Complaint 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. 3). Plaintiff was informed of his pleading deficiencies, and granted leave to amend them. (Id. at 5-9.)
On January 21, 2017, Plaintiff filed a First Amended Complaint (ECF No. 4), followed a week later by a Motion to Appoint Counsel (ECF No. 6). On February 10, 2017, the Court denied Plaintiff's Motion, and sua sponte dismissed his First Amended Complaint, again because it failed to state a claim (ECF No. 7). Plaintiff was once more apprised of his pleading deficiencies, and granted leave to file a Second Amended Complaint within 45 days. (Id. at 9-10.)
Almost four months have passed since the Court's February 10, 2017 Order. Plaintiff has not filed a Second Amended Complaint; nor has he requested an extension of time in which to do so. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) ("If a plaintiff does not take advantage of the opportunity to fix his complaint, a district court may convert the dismissal of the complaint into a dismissal of the entire action."); 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 10, 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: June 8, 2017
/s/_________
Hon. Cathy Ann Bencivengo
United States District Judge