(PC) Luther v. California Department of Corrections & Rehabilitation
- Proceeding
- district
- Area
- civil
- Panel
- Cathy Ann Bencivengo (author)
Analysis
The court dismissed a pro se prisoner's civil rights action for failure to state a claim and failure to prosecute after the plaintiff failed to file an amended complaint within the time allowed. The court 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“Accordingly, the Court DISMISSES this civil action in its entirety based on Plaintiff’s failure to state a claim upon which § 1983 relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B), and his failure to prosecute as required by the Court’s January 6, 2020 Order.” | agree with court The dismissal is supported by the plaintiff's failure to comply with the court's order to amend the complaint within 45 days. The court correctly applied the principle that failure to prosecute or respond to a court's ultimatum warrants dismissal under Rule 41(b) or as a failure to state a claim under § 1915(e)(2)(B). The record indicates the plaintiff was given notice and an opportunity to cure the deficiencies but did not do so. |
Certification that an IFP 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 certification is a procedural determination based on the court's finding that the claims were meritless and the plaintiff failed to prosecute. While the order does not explicitly detail the 'good faith' analysis beyond the dismissal grounds, this is a standard practice in pro se prisoner litigation where the underlying claims are found to be legally insufficient. |
The order itself: sound — The order is procedurally sound. It clearly states the procedural history, the specific deficiencies identified in the prior order, the deadline given, and the plaintiff's failure to act. It cites appropriate Ninth Circuit authority for the dismissal based on failure to prosecute and failure to state a claim. The reasoning directly answers the motion (or sua sponte action) with the right authorities.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EVERETT LUTHER, Case No. 3:19-cv-01449-CAB-NLS Booking #19723372, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION PURSUANT vs. TO 28 U.S.C. § 1915(e)(2)(B) AND 14 FOR FAILING TO PROSECUTE CALIFORNIA DEP’T OF 15 IN COMPLIANCE WITH CORRECTIONS AND COURT ORDER 16 REHABILITATION; SAN DIEGO COUNTY; SAN DIEGO COUNTY 17 SHERIFF’S DEP’T; SHERIFF 18 WILLIAM GORE, 19 Defendants. 20 21 Plaintiff Everett Luther, formerly incarcerated at the East Mesa Reentry Facility in 22 San Diego, California, and proceeding pro se, first filed this civil rights action pursuant to 23 42 U.S.C. § 1983 in the Eastern District of California on July 29, 2019. See “Compl.,” ECF 24 No. 1 at 1. 25 I. Procedural History 26 Because Luther alleged the California Department of Corrections and Rehabilitation, 27 the County of San Diego, the San Diego County Sheriff’s Department, and its Sheriff, 28 William Gore, denied him earned conduct credits, and forced him to “serv[e] a longer 1 sentence in county jail” in violation of the Fourteenth Amendment, id. at 2‒6, his case was 2 transferred here pursuant to 28 U.S.C. § 1406(a). See ECF No. 4. On January 6, 2020, after 3 he filed a Motion to Proceed In Forma Pauperis (“IFP”) and a Notice of Change of Address 4 indicating he was no longer incarcerated, see ECF No. 9, the Court granted Luther leave to 5 proceed IFP, but dismissed his Complaint sua sponte for failing to state claim pursuant to 6 28 U.S.C. § 1915(e)(2)(B). See ECF No. 10. Luther was notified of his pleading 7 deficiencies, and was ordered to file an Amended Complaint within 45 days. Id. at 3‒11. 8 He was also warned his failure to amend would result in the dismissal of his case. Id. at 11, 9 citing Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take 10 advantage of the opportunity to fix his complaint, a district court may convert the dismissal 11 of the complaint into a dismissal of the entire action.”). 12 Luther has not file an Amended Complaint, nearly two months have passed since the 13 Court issued its January 6, 2020 Order, and he has filed no request for an extension of time. 14 “The failure of the plaintiff eventually to respond to the court’s ultimatum–either by 15 amending the complaint or by indicating to the court that [he] will not do so–is properly 16 met with the sanction of a Rule 41(b) dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 17 1065 (9th Cir. 2004). 18 II. Conclusion and Order 19 Accordingly, the Court DISMISSES this civil action in its entirety based on 20 Plaintiff’s failure to state a claim upon which § 1983 relief can be granted pursuant to 28 21 U.S.C. § 1915(e)(2)(B), and his failure to prosecute as required by the Court’s January 6, 22 2020 Order. The Court further CERTIFIES that an IFP appeal would not be taken in good 23 / / / / / 24 / / / / / 25 / / / / / 26 / / / / / 27 / / / / / 28 / / / / / 1 || faith pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final judgment 2 || of dismissal and close the case. 3 IT IS SO ORDERED. 4 ||Dated: March 4, 2020 € ZL 5 Hon. Cathy Ann Bencivengo 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3