Joseph v. Clayton
- Proceeding
- district
- Area
- civil
- Panel
- Gonzalo P. Curiel (author)
Analysis
The court dismissed the plaintiff's civil action without prejudice because he failed to file an amended complaint after being granted leave to do so following a prior dismissal of his claims. The court also 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) and § 1915A(b), and because he has failed to prosecute as required by the Court’s February 18, 2020 Order requiring amendment.” | agree with court The court properly applied Rule 41(b) to dismiss the case for failure to prosecute after the plaintiff failed to file an amended complaint within the deadline set by the previous order. The dismissal is without prejudice, which is consistent with the procedural history where the initial dismissal was for failure to state a claim with leave to amend. The court correctly cited Edwards v. Marin Park for the proposition that failure to respond to an ultimatum to amend warrants dismissal. |
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 court has the authority to certify under 28 U.S.C. § 1915(a)(3) that an appeal is not taken in good faith. While the order does not provide detailed reasoning for this specific certification, it is a standard procedural step in pro se prisoner litigation where the underlying claims have been dismissed for procedural or substantive deficiencies that were previously explained to the plaintiff. |
The order itself: sound — The order is procedurally sound. It correctly identifies the plaintiff's failure to comply with the court's previous order to amend the complaint. It cites appropriate Ninth Circuit authority (Edwards and Lira) to support the dismissal under Rule 41(b). The dismissal is without prejudice, which is appropriate given the prior leave to amend. The certification of the IFP appeal is a standard exercise of judicial authority under § 1915(a)(3).
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALONZO JOSEPH, Case No. 3:19-cv-2139-GPC-RBM CDCR #K-62045, 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 Dr. DAVID CLAYTON, M.D., WITH COURT ORDER 16 Defendant. REQUIRING AMENDMENT 17 18 19 Plaintiff Alonzo Joseph, proceeding pro se, currently incarcerated at California 20 State Prison‒Sacramento, filed a civil complaint against Dr. David Clayton, a medical 21 doctor employed at Richard J. Donovan Correctional Facility (“RJD”) in San Diego, CA. 22 (Dkt. No. 1-3, Compl. at 2‒5.) He alleges Dr. Clayton’s decision in 2018 to discontinue 23 Tramadol in favor of non-narcotic pain relievers caused him severe pain and invoked the 24 Eighth Amendment. (Id. at 6-8.) He claims that Dr. Clayton cut him off from his pain 25 medication without any penological reason. (Id.) Joseph further alleges Dr. Clayton 26 “deliberately retaliated” against him by playing games with “[his] [t]ramadol pain 27 medication,” “without any penological reason.” (Id. at 9, 14.) 28 / / / 1 I. Procedural History 2 On February 18, 2020, the Court overruled Plaintiff’s objection to removal, 3 granted Defendant’s motion to dismiss Plaintiff’s Eighth Amendment claims under 4 Federal Rule of Civil Procedure 12(b)(6), sua sponte dismissed Plaintiff’s retaliation 5 claims under 28 U.S.C. § 1915A(b)(1), declined to exercise supplemental jurisdiction 6 over his state law general negligence and intentional tort claims pursuant to 28 U.S.C. § 7 1367(c), and granted him leave to amend. (Dkt. No. 8.) 8 Plaintiff was notified of his pleading deficiencies and granted leave to file an 9 Amended Complaint that fixed them, if he could. (Id. at 7-13.) Plaintiff was also warned 10 that his failure to amend would result in the dismissal of his case. (Id. at 15 (citing Lira 11 v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage 12 of the opportunity to fix his complaint, a district court may convert the dismissal of the 13 complaint into a dismissal of the entire action.”)). 14 Plaintiff’s Amended Complaint was due on or before April 1, 2020, and over one 15 month has passed since the Court issued its February 18, 2020 Order. But to date, 16 Plaintiff has failed to file an Amended Complaint, and has not requested an extension of 17 time in which to do so. “The failure of the plaintiff eventually to respond to the court’s 18 ultimatum–either by amending the complaint or by indicating to the court that [he] will 19 not do so–is properly met with the sanction of a Rule 41(b) dismissal.” Edwards v. 20 Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). 21 II. Conclusion and Order 22 Accordingly, the Court DISMISSES this civil action in its entirety without 23 prejudice based on Plaintiff’s failure to state a claim upon which § 1983 relief can be 24 granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and because he has failed 25 to prosecute as required by the Court’s February 18, 2020 Order requiring amendment. 26 See Fed. R. Civ. P. 41(b). 27 The Court further CERTIFIES that an IFP appeal would not be taken in good 28 faith pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final 1 || judgment of dismissal and close the file. 2 IT ISSO ORDERED. 3 Dated: April 29, 2020 2 aaho Ca 4 Hon. Gonzalo P. Curiel 5 United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 ee