Norvell v. Roberts
- Proceeding
- district
- Area
- civil
- Panel
- Janis L. Sammartino (author)
Analysis
The court considered a pro se prisoner's civil rights action, which had been previously dismissed with leave to amend, but the plaintiff failed to file an amended complaint by the deadline. The court dismissed the action in its entirety without prejudice for failing to state a claim and failing to prosecute, 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 for failing to state a claim and failing to prosecute.“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 his failure to prosecute pursuant to Fed. R. Civ. P. 41(b) in compliance with the Court’s August 4, 2020 Order.” | agree with court The court correctly applied the statutory authority for screening prisoner complaints (28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)) and the procedural rule for dismissal for failure to prosecute (Fed. R. Civ. P. 41(b)). The record indicates the plaintiff was given leave to amend twice and failed to comply with the final deadline, justifying the dismissal. The dismissal is without prejudice, which is appropriate given the procedural nature of the final failure. |
Certification that an in forma pauperis 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) and DIRECTS the Clerk to enter a final judgment of dismissal and close the file.” | agree with court The court applied the statutory requirement for certifying IFP appeals. While the order does not detail the specific reasons for the certification, it is a standard procedural step following a dismissal in a pro se case where the court has already found the claims deficient. |
The order itself: sound — The order is procedurally sound. It correctly identifies the statutory basis for screening and dismissal, cites the appropriate rule for failure to prosecute, and relies on binding Ninth Circuit precedent (Edwards v. Marin Park) to support the dismissal for failure to amend. The court accounted for the delay in service of the previous order, showing careful attention to the record. The reasoning directly answers the procedural posture of the case.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANTHANEY LEAVONE NORVELL, Case No. 3:20-cv-0512-JLS-NLS CDCR #AA0214, 12 ORDER: (1) DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILING TO STATE vs. A CLAIM PURSUANT TO 28 U.S.C. 14 §§ 1915(e)(2) AND 1915A(b); AND S. ROBERTS, M.D.; JUSTIN B. KING; 15 (2) DISMISSING FOR FAILING MARCUS POLLARD, TO PROSECUTE IN COMPLIANCE 16 Defendants. WITH COURT ORDER 17 REQUIRING AMENDMENT 18 (ECF No. 8) 19 20 21 Plaintiff Anthony Leavone Norvell, while housed at the Richard J. Donovan 22 Correctional Facility (“RJD”) and proceeding pro se, filed this civil rights action pursuant 23 to 42 U.S.C. § 1983 on March 18, 2020. See Complaint (“Compl.,” ECF No. 1). 24 I. Procedural History 25 On May 11, 2020, the Court granted Plaintiff leave to proceed in forma pauperis but 26 dismissed his Complaint for failing to state any claim upon which relief could be granted 27 pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). See ECF No. 7. Plaintiff was 28 advised of his pleading deficiencies and granted forty-five (45) days’ leave in which to file 1 an Amended Complaint that fixed those deficiencies. Id. at 9–10. 2 On July 8, 2020, Plaintiff filed his First Amended Complaint (“FAC”). See ECF 3 No. 8. Once again, the Court dismissed Plaintiff’s FAC for failing to state any claim upon 4 which relief could be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b). See 5 ECF No. 8. Plaintiff was again granted forty-five (45) days’ leave in which to file an 6 Amended Complaint to fix the deficiencies of pleading identified in the Court’s Order. Id. 7 at 8. 8 Even allowing for extra time due to the Plaintiff failing to initially receive the 9 Court’s August 4, 2020 Order,1 Plaintiff’s Amended Complaint was due on or before 10 October 19, 2020. But to date, Plaintiff has not filed an Amended Complaint, and has not 11 requested an extension of time in which to do so. “The failure of the plaintiff eventually 12 to respond to the court’s ultimatum–either by amending the complaint or by indicating to 13 the court that [he] will not do so–is properly met with the sanction of a Rule 41(b) 14 dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). 15 II. Conclusion and Order 16 Accordingly, the Court DISMISSES this civil action in its entirety without prejudice 17 based on Plaintiff’s failure to state a claim upon which § 1983 relief can be granted pursuant 18 to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b), and his failure to prosecute pursuant to Fed. 19 R. Civ. P. 41(b) in compliance with the Court’s August 4, 2020 Order. 20 / / / 21 / / / 22 / / / 23 / / / 24 / / / 25 26 1 The Court’s Order was initially returned “undeliverable.” (ECF No. 12.) However, the Court confirmed 27 Plaintiff’s address was correct with the CDCR and mailed another copy of the Order on September 4, 2020. (See ECF No. 12.) See also CDCR Inmate Locator, https://inmate.locator.cdcr.ca.gov (last visited 28 1 The Court further CERTIFIES that an IFP appeal would not be taken in good faith 2 || pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final judgment of 3 || dismissal and close the file. 4 IT IS SO ORDERED. 5 Dated: December 29, 2020 . tt 6 pee Janis L. Sammartino 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3