Jones v. Nisleit
- Proceeding
- district
- Area
- civil
- Panel
- Michael M. Anello (author)
Analysis
The court considered a pro se prisoner's civil rights action where the plaintiff failed to file an amended complaint after being granted leave to cure initial pleading deficiencies. The court dismissed the action in its entirety without prejudice 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 Plaintiff’s failure to state a claim upon which § 1983 relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and § 1915A(b)(1), and his failure to prosecute pursuant to Fed. R. Civ. P. 41(b) in compliance with the Court’s October 8, Order.” | agree with court The dismissal is procedurally sound. The court previously granted leave to amend, the plaintiff failed to file an amended complaint or request an extension, and the court applied the standard from Edwards v. Marin Park for dismissing the action for failure to prosecute. The dismissal is without prejudice, which is appropriate given the procedural nature of the failure. |
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 consistent with the dismissal for failure to prosecute. Since the dismissal is based on the plaintiff's inaction rather than a substantive legal error, an appeal would likely be frivolous or without merit, satisfying the standard for certification under 28 U.S.C. § 1915(a)(3). |
The order itself: sound — The order correctly applies Ninth Circuit precedent regarding the dismissal of actions for failure to prosecute after a plaintiff fails to amend a complaint despite being given leave to do so. The court cites the relevant statutes (28 U.S.C. § 1915, § 1915A) and rules (Fed. R. Civ. P. 41(b)) and provides a clear procedural history supporting the dismissal.
Opinion
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 MARLO Q. JONES, Case No.: 3:19-cv-01800-MMA-WVG 11 Plaintiff, ORDER DISMISSING CIVIL 12 vs. ACTION 13 CHIEF DAVID LISLEIT, et al., 14 Defendants. 15 16 17 Plaintiff Marlo Q. Jones, while housed at the San Diego County Jail, and 18 proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 on 19 September 18, 2019. See Compl., Doc. No. 1. 20 I. Procedural History 21 On October 8, 2019, the Court granted Plaintiff leave to proceed in forma pauperis 22 (“IFP”), but dismissed his Complaint for failing to state any claim upon which relief 23 could be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). See Doc. No. 5. 24 Plaintiff was advised of his pleading deficiencies and granted thirty (30) days leave in 25 which to file an Amended Complaint that fixed them. See id. at 5-8. Plaintiff was also 26 cautioned, however, that if he failed to file an Amended Complaint that cured his 27 pleading defects, the Court would dismiss his case. See id. at 8 (citing Lira v. Herrera, 28 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the 1 || opportunity to fix his complaint, a district court may convert the dismissal of the 2 ||complaint into a dismissal of the entire action.”’)). 3 Plaintiff's Amended Complaint was due on or before November 8, 2019. But to 4 || date, Plaintiff has not filed an Amended Complaint, and has not requested an extension of 5 ||time in which to do so. “The failure of the plaintiff eventually to respond to the court’s 6 || ultimatum — either by amended the complaint or by indicating to the court that [he] will 7 ||not do so — is properly met with the sanction of a Rule 41(b) dismissal.” Edwards v. 8 || Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). 9 Conclusion and Order 10 Accordingly, the Court DISMISSES this civil action in its entirety without 11 || prejudice based on Plaintiff’s failure to state a claim upon which § 1983 relief can be 12 || granted pursuant to 28 U.S.C. § 1915(e)(2)(B)@i) and § 1915A(b)(1), and his failure to 13 || prosecute pursuant to Fed. R. Civ. P. 41(b) in compliance with the Court’s October 8, 14 Order. 15 The Court further CERTIFIES that an IFP appeal would not be taken in good 16 || faith pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final 17 judgment of dismissal and close the file. 18 IT IS SO ORDERED. 19 || DATED: April 1, 2020 J, CTU - 7 (2 Lox 20 HON. MICHAEL M. ANELLO 5] United States District Judge 22 23 24 25 26 27 28 13