Mourning v. Gore
- Proceeding
- district
- Area
- civil
- Panel
- William Q. Hayes (author)
Analysis
Defendant William Gore moved to dismiss the plaintiff's civil rights action under Federal Rule of Civil Procedure 41(b) because the plaintiff failed to file an amended complaint within thirty days of the court's order granting leave to amend. The court granted the motion and dismissed the action in its entirety without prejudice.
| What the court decided | The model |
|---|---|
Defendant William Gore's Motion to Dismiss is granted, and the action is dismissed in its entirety without prejudice.“Defendant Gore’s Motion to Dismiss is GRANTED. This civil action is DISMISSED in its entirety without prejudice based on Plaintiffs failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b) in compliance with the Court’s April 25, 2019, Order.” | agree with court The court correctly applied Rule 41(b) and Ninth Circuit precedent. The record establishes that the plaintiff was given thirty days to file an amended complaint, failed to do so, failed to request an extension, and failed to respond to the court's briefing schedule. Under Harris v. Mangum and Edwards v. Marin Park, this failure to comply with a court order justifies dismissal. Dismissing without prejudice is the appropriate sanction for failure to prosecute, as it preserves the plaintiff's right to refile if the underlying claims are still viable. |
The order itself: sound — The order is procedurally sound and relies on the correct binding Ninth Circuit authorities to support the dismissal for failure to prosecute. The court clearly identifies the procedural history, the specific court order the plaintiff failed to comply with, and the lack of any response or extension request from the plaintiff. The application of Rule 41(b) is straightforward and consistent with established precedent.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JEFFERY LEE MOURNING, Case No. 3:18-cv-02245-WQH-RBM Inmate Booking No. 1814430, 12 ORDER DISMISSING ACTION FOR Plaintiff, 13 FAILING TO PROSECUTE IN vs. COMPLIANCE WITH COURT 14 ORDER 15 WILLIAM GORE; SECURUS 16 TELEPHONE CO.; JOHN & JANE 17 DOES 1 THROUGH 10, 18 Defendants. 19 20 21 The matter before the Court is the Motion to Dismiss Plaintiff’s Complaint filed by 22 Defendant William Gore. ECF No. 17. 23 I. Procedural History 24 On September 26, 2018, Plaintiff Jeffery Lee Mourning, while formerly housed at 25 the George Bailey Detention Facility (“GBDF”) located in San Diego, California, and 26 proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983. See Compl., 27 ECF No. 1. On January 3, 2019, the Court granted Plaintiff leave to proceed in forma 28 pauperis (“IFP”) and directed the United States Marshal Service (“USMS”) to effect 1 service of the Complaint on the named Defendants. See ECF No. 3. On February 13, 2019, 2 Plaintiff filed a “Motion Pursuant to Amend.” ECF No. 8. On February 20, 2019, United 3 States Magistrate Judge Ruth Bermudez Montenegro construed this as a motion seeking 4 leave to file an amended pleading and issued a Report and Recommendation 5 recommending Plaintiff’s Motion be granted. See ECF No. 12 at 12. On April 25, 2019, 6 this Court adopted Magistrate Judge Montenegro’s Report and Recommendation and 7 informed Plaintiff that he “shall file an amended complaint, complete in itself without 8 reference to the superseded pleading, within thirty days of the entry of this Order.” ECF 9 No. 14 at 2. 10 To date, Plaintiff has failed to amend and has not asked for an extension of time in 11 which to do so. On August 5, 2019, Defendant William Gore filed a Motion to Dismiss 12 Plaintiff’s Complaint pursuant to Federal Rule of Civil Procedure 41(b). ECF No. 17. 13 II. Defendant’s Motion 14 Federal Rule of Civil Procedure 41(b) states, in part, that if a plaintiff “fails to 15 prosecute or to comply with these rules or a court order, a defendant may move to dismiss 16 the action or any claim against it.” The Ninth Circuit has held that where a “plaintiff has 17 not filed an amended complaint after being given leave to do so and has not notified the 18 court of his intention not to file an amended complaint,” the Court may “deem the dismissal 19 to be for failure to comply with a court order” pursuant to Rule 41(b). Harris v. Mangum, 20 863 F.3d 1133, 1142 (9th Cir. 2017). 21 In this case, Plaintiff had thirty (30) days from the date the Court filed the April 25, 22 2019, Order to file his amended pleading. Plaintiff has not filed anything with this Court 23 since February 13, 2019. See ECF No. 10. On September 20, 2019, the Court’s briefing 24 schedule was returned to the Court “undeliverable” with the notation “out of custody.” 25 ECF No. 19. “The failure of the plaintiff eventually to respond to the court’s ultimatum– 26 either by amending the complaint or by indicating to the court that [he] will not do so–is 27 properly met with the sanction of a Rule 41(b) dismissal.” Edwards v. Marin Park, 356 28 F.3d 1058, 1065 (9th Cir. 2004). 1 Conclusion and Order 2 Defendant Gore’s Motion to Dismiss is GRANTED. This civil action is 3 ||DISMISSED in its entirety without prejudice based on Plaintiffs failure to prosecute 4 || pursuant to Federal Rule of Civil Procedure 41(b) in compliance with the Court’s April 25, 5 ||2019, Order. The Clerk of Court is directed to close the file. 6 IT IS SO ORDERED. 7 || Dated: October 30, 2019 BME: ie Z. A a 8 Hon. William Q. Hayes 9 United States District Court 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 oo