Dilon Andrew Dalton Hess v. San Diego District Attorney, Summer Stephan, Katia Davila, CHP Oceanside, CHP San Diego, Oceanside Police Dep't, Hollywood, Moyer, Morrison
- Proceeding
- district
- Area
- civil
- Panel
- James E. Simmons (author)
Analysis
The court reviewed a pro se prisoner's failure to file a first amended complaint after an initial dismissal with leave to amend. 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 a claim upon which relief can be granted and failure to prosecute.” | agree with court The court correctly applied the procedural rule that a plaintiff who fails to amend a complaint after being granted leave to do so may have the action dismissed. The dismissal is without prejudice, which is the appropriate remedy for failure to prosecute in this context, allowing the plaintiff to refile if they can cure the deficiencies. The court relied on the Ninth Circuit precedent Lira v. Herrera to support the conversion of the dismissal of the complaint into a dismissal of the action. |
The order itself: sound — The order is procedurally sound. It clearly states the history of the case, the deadline given to the plaintiff, the plaintiff's failure to meet that deadline, and the legal basis for the dismissal. The citation to Lira v. Herrera is appropriate for the proposition that failure to amend can lead to dismissal of the action. The dismissal is without prejudice, which is consistent with the failure to prosecute rationale.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DILON ANDREW DALTON HESS, Case No.: 3:26-cv-1620-JES-LR Booking #25701006, 12 ORDER DISMISSING ACTION Plaintiff, 13 FOR FAILURE TO STATE A vs. CLAIM UPON WHICH RELIEF 14 CAN BE GRANTED AND SAN DIEGO DISTRICT ATTORNEY, 15 FAILURE TO PROSECUTE SUMMER STEPHAN, KATIA DAVILA, 16 CHP OCEANSIDE, CHP SAN DIEGO, OCEANSIDE POLICE DEP’T, 17 HOLLYWOOD, MOYER, MORRISON, 18 HUTHMAKER, DALEY, NELSON, C. REARDON, S. REARDON, SMITH, 19 HOLLINS, SHIELDS, HERB WESTON, 20 RICHARD COLMAN, 21 Defendants. 22 23 On March 12, 2026, Plaintiff Dilon Andrew Dalton Hess (“Plaintiff”) filed this pro 24 se section 1983 action and filed a motion to proceed in forma pauperis (“IFP”). ECF Nos. 25 1, 2. The Court granted the IFP motion and dismissed the case for failure to state a claim 26 pursuant to screening under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). ECF No. 4. The 27 Court granted Plaintiff sixty days to file a first amended complaint (“FAC”). Id. at 12. 28 Plaintiff had until August 22, 2026, to file a FAC. The Court cautioned Plaintiff that if he 1 || failed to timely file a FAC, the Court would enter a final Order dismissing this civil action 2 || based both on failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. 3 1915(e)(2)(B)ai) and § 1915A(b)(1), and failure to prosecute in compliance with a court 4 || order requiring amendment. See Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“Tt 5 |/a plaintiff does not take advantage of the opportunity to fix his complaint, a district court 6 || may convert the dismissal of the complaint into dismissal of the entire action.”). 7 As of the date of this Order Plaintiff has not filed a FAC or request an extension of 8 || time to file a FAC. Accordingly, the Court DISMISSES this action without prejudice for 9 || failure to state a claim upon which relief can be granted and failure to prosecute. The Clerk 10 || of Court is directed to close the case. 1] IT IS SO ORDERED. 12 || Dated: September 14, 2026 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28