Baker v. Roger ITO
- Proceeding
- district
- Area
- civil
- Panel
- Gonzalo P. Curiel (author)
Analysis
The court reviewed a pro se prisoner's civil rights complaint that had previously been dismissed with leave to amend, but the plaintiff failed to file an amended complaint or request an extension. The court dismissed the action without prejudice for failure to state a claim, seeking monetary relief against immune defendants, and failure to prosecute, and certified that an in forma pauperis appeal would not be taken in good faith.
| What the court decided | The model |
|---|---|
Dismissal of the civil action in its entirety without prejudice“Accordingly, the Court DISMISSES this civil action in its entirety without prejudice based on Plaintiffs failure to state a claim upon which § 1983 relief can be granted and for seeking monetary damages against immune defendants pursuant to 28 U.S.C. 1915(e)(2)(B) and § 1915A(b), and his failure to prosecute pursuant to FED. R. Clv. P. 41(b) in compliance with the Court’s July 15, 2019 Order (ECF No. 4).” | agree with court The dismissal is procedurally sound. The plaintiff was granted 30 days to amend the complaint to cure specific deficiencies (failure to state a claim and suing immune defendants) but failed to do so and did not request an extension. Under Federal Rule of Civil Procedure 41(b), a court may dismiss an action for failure to prosecute. The court correctly cites Edwards v. Marin Park as authority for dismissing when a plaintiff fails to respond to a court's ultimatum to amend. The dismissal is without prejudice, which is the appropriate sanction for failure to amend after a prior dismissal with leave to amend, allowing the plaintiff to refile if they can cure the defects. |
Certification that an in forma pauperis appeal would not be taken in good faith“The Court further CERTIFIES that an IFP appeal would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3)” | agree with court The court has the authority to certify under 28 U.S.C. § 1915(a)(3) that an appeal would not be taken in good faith. Given that the dismissal was based on the plaintiff's failure to comply with a court order to amend a complaint that had already been found deficient, and the dismissal was without prejudice (meaning the plaintiff can refile), an immediate appeal of the procedural dismissal is generally not considered a good-faith appeal. This is a standard procedural certification in prisoner litigation. |
The order itself: sound — The order is procedurally correct and relies on the appropriate statutes and case law. It clearly states the procedural history, the plaintiff's failure to act, and the legal basis for the dismissal. The citation to Edwards v. Marin Park is directly on point for the failure to prosecute aspect. The dismissal is without prejudice, which is the correct outcome for a failure to amend after a prior dismissal with leave to amend. The certification of no good faith appeal is standard in this context.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TOMMIE LEE BAKER, Case No. 3:19-cv-1156-GPC-RBM CDCR #7-30691, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILING vs. TO STATE A CLAIM AND FOR 14 SEEKING MONETARY RELIEF 15 AGAINST IMMUNE DEFENDANT ROGER ITO, Judge; S. HARDEN, PURSUANT 16 Account Officer Specialist; B. TO 28 U.S.C. § 1915(e)(2) AND 17 SULLIVAN, Appeal Examiner; § 1915A(b) AND FOR FAILING TO SECRETARY OF CDCR, PROSECUTE IN COMPLIANCE 18 Defendants. WITH COURT ORDER 19 REQUIRING AMENDMENT 20 21 Tommie Lee Baker III (“Plaintiff”), while housed at the Richard J. Donovan 22 Correctional Facility located in San Diego, California, and proceeding pro se, filed this 23 civil rights action pursuant to 42 U.S.C. § 1983 on June 19, 2019. See Compl., ECF No. 1. 24 I. Procedural History 25 On July 15, 2019, the Court granted Plaintiff leave to proceed in forma pauperis but 26 dismissed his Complaint for failing to state any claim and for seeking monetary damages 27 against immune defendants pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). See 28 ECF No. 4. Plaintiff was informed of his pleading deficiencies and granted 30 days leave 1 which to file an Amended Complaint that fixed them. /d. at 10-11. 2 That time has since passed, but to date, Plaintiff has failed to amend, and has not 3 asked for an extension of time in which to do so. “The failure of the plaintiff eventually to 4 ||respond to the court’s ultimatum—either by amending the complaint or by indicating to the 5 || court that [he] will not do so—is properly met with the sanction of a Rule 41(b) dismissal.” 6 || Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). 7 Conclusion and Order 8 Accordingly, the Court DISMISSES this civil action in its entirety without prejudice 9 || based on Plaintiffs failure to state a claim upon which § 1983 relief can be granted and for 10 |/seeking monetary damages against immune defendants pursuant to 28 U.S.C. 11 1915(e)(2)(B) and § 1915A(b), and his failure to prosecute pursuant to FED. R. Clv. P. 12 ||41(b) in compliance with the Court’s July 15, 2019 Order (ECF No. 4). 13 The Court further CERTIFIES that an IFP appeal would not be taken in good faith 14 || pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final judgment of 15 dismissal and close the file. 16 IT IS SO ORDERED. 17 || Dated: September 25, 2019 2 18 Hon. athe Cate 19 United States District Judge 20 21 22 23 24 25 26 27 28 2