Baker v. Battad
- Proceeding
- district
- Area
- civil
- Panel
- Anthony J Hatta (author)
Analysis
The court considered a prisoner pro se plaintiff's failure to file an amended complaint or respond to a show cause order after a partial dismissal. The court ordered the action dismissed in its entirety without prejudice for failure to prosecute.
| What the court decided | The model |
|---|---|
Dismissal of the action in its entirety without prejudice“Accordingly, the Court DISMISSES this action in its entirety without prejudice based on Plaintiff's failure to prosecute pursuant to Fed. R. Civ. P. 41(b).” | agree with court The court properly applied Rule 41(b) to dismiss the case for failure to prosecute after the plaintiff failed to comply with a deadline to amend and a subsequent show cause order. The dismissal is without prejudice, which is appropriate given the procedural nature of the failure and the plaintiff's pro se status. |
The order itself: sound — The order is procedurally sound. It cites the specific procedural history (deadline missed, show cause order ignored) and applies the correct Ninth Circuit precedent for dismissing a case for failure to prosecute when a plaintiff ignores a court's directive to amend. The dismissal without prejudice is the standard remedy in this context.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TOMMIE LEE BAKER, III, Case No.: 19-CV-1438-AJB (BLM)
12 Plaintiff, ORDER DISMISSING ACTION 13 v. WITHOUT PREJUDICE 14 R. BATTAD AND O. ARIZAGA, 15 Defendants. 16 17 18 19 This matter is a prisoner pro se action filed pursuant to 42 U.S.C. § 1983. On June 20 24, 2020, the Court adopted the Magistrate Judge’s Report and Recommendation, and 21 granted in part and denied in part Defendants’ motion to dismiss. (Doc. No. 15.) The Court 22 granted Plaintiff leave to amend his Complaint, and directed Plaintiff to file an Amended 23 Complaint by August 1, 2020. (Id.) Having missed the deadline, and seeing no further 24 activity, on January 25, 2021, the Court ordered Plaintiff to show cause as to why Plaintiff’s 25 case should not be dismissed for failure to prosecute. (Doc. No. 18.) The Court warned that 26 failure to show cause by February 26, 2021 will result in the dismissal of Plaintiff’s case. 27 (Id.) That date has come and passed, and Plaintiff still has not amended his Complaint, 28 filed for an extension of time, or otherwise indicated he is still interested in prosecuting his | case. “The failure of the plaintiff eventually to respond to the court’s ultimatum — either by 2 amended the complaint or by indicating to the court that [he] will not do so — is properly 3 || met with the sanction of a Rule 41(b) dismissal.” Edwards v. Marin Park, 356 F.3d 1058, * || 1065 (9th Cir. 2004). 5 Accordingly, the Court DISMISSES this action in its entirety without prejudice 6 |lbased on Plaintiff's failure to prosecute pursuant to Fed. R. Civ. P. 41(b). See Lira vy. 7 Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of 8 || the opportunity to fix his complaint, a district court may convert the dismissal of the 9 complaint into a dismissal of the entire action.”’). 10 The Clerk of Court is DIRECTED to CLOSE THIS CASE. 11 12 IS SO ORDERED. 13 14 Dated: March 3, 2021 15 Hon. Anthony J Hatta 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28