Turley v. Lezano
- Proceeding
- district
- Area
- civil
- Panel
- Gonzalo P. Curiel (author)
Analysis
The court considered a pro se prisoner's civil rights action that had been dismissed twice with leave to amend, but where the plaintiff failed to file a second amended complaint or seek an extension of time. The court dismissed the civil action in its entirety without further leave to amend for failure to state a claim and failure to prosecute.
| What the court decided | The model |
|---|---|
Dismissal of the civil action in its entirety without further leave to amend“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 relief can granted and for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).” | agree with court The court properly applied Rule 41(b) to dismiss the action after the plaintiff failed to comply with a deadline to amend the complaint. The record shows the plaintiff was given leave to amend twice, and after the second dismissal, was given a specific deadline (October 30, 2023) to file a second amended complaint. The plaintiff neither filed the amendment nor sought an extension. Under Ninth Circuit precedent, a plaintiff's failure to respond to a court's ultimatum to amend or state an inability to do so justifies dismissal of the entire action under Rule 41(b) for failure to prosecute. The court also noted the underlying failure to state a claim, which was previously established. The decision follows from the law and the recited record. |
The order itself: sound — The order is procedurally sound. It accurately recites the procedural history, including the two prior dismissals with leave to amend and the specific deadline given for the second amended complaint. It correctly applies Federal Rule of Civil Procedure 41(b) and cites binding Ninth Circuit authority (Edwards and Lira) that supports dismissing the entire action when a plaintiff fails to prosecute by ignoring a deadline to amend. The reasoning directly answers the issue of why the action is being dismissed rather than just the complaint.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MACEY E. TURLEY, Case No.: 3:22-cv-1719-GPC-DDL CDCR #BF-8128 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILING TO vs. STATE A CLAIM AND FOR 14 FAILING TO PROSECUTE IN 15 COMPLIANCE WITH COURT LEZANO, Correctional Officer, ORDER REQUIRING 16 Defendant. AMENDMENT 17 18 19 Macey E. Turley (“Plaintiff”), currently incarcerated at California State Prison, 20 Corcoran and proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 21 1983 on October 31, 2022. (Dkt. No. 1, Compl.) On November 14, 2022, the Court 22 dismissed the case without prejudice for failing to pay the filing fee and/or failing to 23 move to proceed in forma pauperis. (Dkt. No. 2.) Subsequently, on December 1, 2022, 24 Plaintiff filed a motion for leave to proceed in forma pauperis. (Dkt. No. 3.) On March 25 28, 2023, the Court granted Plaintiff’s motion to proceed in forma pauperis, and sua 26 sponte dismissed the complaint for failure to state a claim pursuant to 28 U.S.C. § 27 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b) with leave to amend. (Dkt. No. 5.) Plaintiff 28 filed a supplemental document on April 10, 2023. (Dkt. No. 6.) On May 30, 2023, the 1 || Court declined to construe the supplemental document as an amended complaint and 2 || granted him an extension of time to file a amended complaint. (Dkt. No. 7.) On June 8, 3 || 2023, Plaintiff filed an amended complaint. (Dkt. No. 8.) On July 7, 2023, the Court 4 || sua sponte dismissed the amended complaint for failure to state a claim and granted 5 || Plaintiff leave to file a second amended complaint. (Dkt. No. 10.) Plaintiff was granted 6 days from the date of the Court’s order, or October 30, 2023, to file a second amended 7 ||complaint. (/d.) Over four months have passed since the Court’s dismissal order, and to 8 || date, Plaintiff has not filed a second amended complaint nor sought an extension of time 9 || to file one. Accordingly, the Court DISMISSES this civil action in its entirety without 10 || further leave to amend based on Plaintiff's failure to state a claim upon which relief can 11 granted and for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). 12 || See Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004) (“The failure of the 13 || plaintiff eventually to respond to the court’s ultimatum—either by amending the 14 || complaint or indicating to the court that [she] will not do so—is properly met with the 15 sanction of a Rule 41(b) dismissal.”); Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 16 2005) (“If a plaintiff does not take advantage of the opportunity to fix his complaint, a 17 || district court may convert the dismissal of the complaint into dismissal of the entire 18 || action.”). The Court DIRECTS the Clerk of Court to enter final judgment of dismissal 19 |] and to close the file. 20 IT IS SO ORDERED. 21 ||Dated: February 13, 2024 2 sf 22 Hon. athe Cae 23 United States District Judge 24 25 26 27 28