(PC) Gaither v. Williams.
- Proceeding
- district
- Area
- civil
- Panel
- Anthony J. Battaglia (author)
Analysis
The court reviewed a pro se prisoner's civil rights complaint that was previously dismissed without prejudice with leave to amend, noting the plaintiff failed to file an amended complaint by the deadline. The court ordered the action dismissed without prejudice for failure to state a claim and failure to prosecute.
| What the court decided | The model |
|---|---|
Dismissal of the action without prejudice for failure to state a claim and failure to prosecute“Accordingly, the Court DISMISSES this action without prejudice for failure to state claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), and for failure to prosecute.” | agree with court The court correctly applied the procedural mechanism for dismissing a case when a plaintiff fails to amend a complaint after being granted leave to do so. The order recites that the plaintiff was given a specific deadline (September 10, 2024) and was warned that failure to comply would result in dismissal for failure to prosecute. Since the plaintiff did not file an amended complaint or contact the court, the dismissal is procedurally sound under the cited authorities and general federal practice. |
The order itself: sound — The order is procedurally sound. It clearly states the prior history (dismissal with leave to amend), the specific deadline given, the warning provided to the plaintiff, and the plaintiff's failure to act. The citation to Lira v. Herrera supports the conversion of the dismissal of the complaint to a dismissal of the action. The reasoning directly answers the procedural posture of the case.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BURRELL A. GAITHER, Case No.: 24-cv-01089-AJB-DDL 12 Plaintiff, 13 vs. ORDER DISMISSING ACTION WITHOUT PREJUDICE 14 S. WILLIAMS, A. GEORGE, SMITH, 15 S. AMADOR, 16 Defendants. 17 18 19 On June 21, 2024, Plaintiff Burrell A. Gaither (“Plaintiff”), a state prisoner 20 proceeding pro se filed a civil rights Complaint pursuant to 42 U.S.C. § 1983 and filed a 21 motion seeking leave to proceed in forma pauperis (“IFP”). (Doc. Nos. 1; 2.) On July 12, 22 2024, the Court granted Plaintiff leave to proceed IFP and dismissed the Complaint without 23 prejudice for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. 24 §§ 1915(e)(2)(B) & 1915A(b). (Doc. No. 10.) Plaintiff was granted leave to amend by 25 September 10, 2024, and specifically instructed that if he failed to file a First Amended 26 Complaint within the time provided the Court would enter a final Order dismissing this 27 civil action based on Plaintiff’s failure to prosecute in compliance with a court order 28 requiring amendment. (Id. at 7–8 (citing Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 1 }}2005) (“If a plaintiff does not take advantage of the opportunity to fix his complaint, a 2 district court may convert the dismissal of the complaint into dismissal of the entire 3 |jaction.”).) To date, Plaintiff has not filed a First Amended Complaint or otherwise 4 || contacted the Court. 5 Accordingly, the Court DISMISSES this action without prejudice for failure to state 6 claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 7 || 1915A(b), and for failure to prosecute. The Clerk of Court is DIRECTED to enter final 8 || judgment accordingly. 9 IT IS SO ORDERED. 10 || Dated: January 21, 2025 © ¢ Hon. Anthony J. attaglia 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2