Harley v. Quindiahjen

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANDREW HARLEY, Case No. 3:19-cv-01607-MMA-LL CDCR #T-42313, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION PURSUANT vs. TO 28 U.S.C. § 1915(e)(2) AND 14 § 1915A(b) AND FOR FAILING 15 TO PROSECUTE IN COMPLIANCE QUINDIAHJEN, Correctional Officer, WITH COURT ORDER 16 et al., REQUIRING AMENDMENT 17 Defendants. 18 19 20 Plaintiff Andrew Harley, while incarcerated at California State Prison, Los 21 Angeles County (“LAC”), and proceeding pro se, filed this civil rights action pursuant to 22 42 U.S.C. § 1983 (“Compl.”) against Defendant Quindiahjen, a Correctional Officer 23 employed at Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California, 24 on August 26, 2019. See Compl., Doc. No. 1. Harley alleged Quindiahjen and several 25 other unidentified RJD officers violated his Eighth Amendment rights by failing to permit 26 him to wash his hands or use the restroom during and immediately after he was 27 transported from LAC to RJD on July 26, 2018. Id. at 8‒9. He sought $900,000 in 28 compensatory and punitive damages. Id. at 8, 11. 1 I. Procedural History 2 On October 29, 2019, the Court granted Harley’s Motion to Proceed In Forma 3 Pauperis (“IFP”), but dismissed his Complaint for failing to state claim pursuant to 28 4 U.S.C. § 1915(e)(2) and § 1915A(b). See Doc. No. 3. Harley was notified of his 5 pleading deficiencies, and granted 45 days leave to file an Amended Complaint that fixed 6 them, if he could. Id. at 6-10. Harley was also warned his failure to amend would result 7 in the dismissal of his case. Id. at 13 (citing Lira v. Herrera, 427 F.3d 1164, 1169 (9th 8 Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix his complaint, 9 a district court may convert the dismissal of the complaint into a dismissal of the entire 10 action.”)). 11 Harley’s Amended Complaint was due on or before December 13, 2019, and more 12 than two full months have passed since the Court issued its October 29, 2019 Order.1 But 13 to date, Harley has failed to file an Amended Complaint, and has not requested an 14 extension of time in which to do so. “The failure of the plaintiff eventually to respond to 15 the court’s ultimatum–either by amending the complaint or by indicating to the court that 16 [he] will not do so–is properly met with the sanction of a Rule 41(b) dismissal.” 17 Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). 18 II. Conclusion and Order 19 Accordingly, the Court DISMISSES this civil action in its entirety without 20 prejudice based on Harley’s failure to state a claim upon which § 1983 relief can be 21 granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and his failure to 22 prosecute as required by Court’s October 29, 2019 Order requiring amendment. See also 23 S.D. Cal. CivLR 83.11.b. (“If mail directed to a pro se plaintiff by the clerk at the 24 25 1 In fact, the Court’s October 29, 2019 Order was returned undeliverable by the U.S. Post 26 Office on November 11, 2019, with a notation that Harley has been discharged. See Doc. 27 No. 4. He has filed nothing since. The Local Rules of this Court provide that “[a] party proceeding pro se must keep the court and opposing parties advised as to current address.” 28 1 || plaintiff's last designated address is returned by the Post Office,” the court may dismiss 2 || the case after 60 days without prejudice for failure to prosecute.) 3 The Court further CERTIFIES that an IFP appeal would not be taken in good 4 || faith pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final 5 ||judgment of dismissal and close the file. 6 IT IS SO ORDERED. 7 ||DATE: January 14, 2020 Witht Lh hipltr g HON. MICHAEL M. ANELLO United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 on