Opinion
23-cv-2278-BAS-MMP
10-07-2024
CLAUDIE TYLER, CDCR #K-19763, Plaintiff, v. J. LEWIS, JOHN/JANE DOE #1, JOHN/JANE DOE #2, JOHN DOE #3, OFFICER RIOS, Defendants.
ORDER DISMISSING ACTION WITHOUT PREJUDICE FOR FAILURE TO AMEND
Hon. Cynthia Bashant United States District Judge
Plaintiff Claudie Tyler brought this action stating civil rights claims against a prison officer in his individual and official capacities. (ECF No. 1.) The Court dismissed the Complaint for failure to state a claim pursuant to 28 U.S.C Section 1915A(b). (ECF No. 7.) Plaintiff subsequently filed a First Amended Complaint (ECF No. 8), which was again dismissed by this Court for failing to state a claim pursuant to 28 U.S.C Section 1915A(b). (ECF No. 10.) The Court gave Plaintiff another chance to amend his complaint and ordered him to file a Second Amended Complaint with the Court if he wished to proceed with the action. (Id.)
The deadline to file that Second Amended Complaint was September 9, 2024. (ECF No. 10.) In its prior Order Dismissing the First Amended Complaint, the Court informed Plaintiff that the Second Amended Complaint must cure the deficiencies highlighted by the Court's Order, and that if Plaintiff failed to file a Second Amended Complaint, the Court would “enter a final Order dismissing this civil action based both on Plaintiff's failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. § 1915A(b)(1), and his failure to prosecute in compliance with a court order requiring amendment.” (Id. at 9:18-21.) Despite this warning and an additional reminder of the deadline in a subsequent order denying Plaintiff's motion for Mandatory Settlement Conference (ECF Nos. 11, 12), the deadline to file the Second Amended Complaint came and went, yet Plaintiff failed to file a Second Amended Complaint. The Court then issued an Order to Show Cause as to why the case should not be dismissed for Plaintiff's failure to prosecute-again, reminding Plaintiff of the need to file a Second Amended Complaint should he wish to proceed with the action. (ECF No. 13.) The Court gave Plaintiff until September 30, 2024, to show cause either by filing a response with the Court or by filing a Second Amended Complaint. (Id.)
The deadline for Plaintiff to respond to this latest order lapsed seven days ago and yet Plaintiff has still failed to file anything further with this Court. Accordingly, the Court converts its dismissal of the First Amended Complaint into a dismissal of the instant action. 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 dismissal of the entire action.”). This dismissal is without prejudice. The Court directs the Clerk of Court to close the case.
IT IS SO ORDERED.