Ivy v. Wingo
- Proceeding
- district
- Area
- civil
- Panel
- Cathy Ann Bencivengo (author)
Analysis
The court dismissed a pro se prisoner's civil rights action for failing to state a claim and for failing to prosecute after the plaintiff failed to file an amended complaint within the extended deadlines set by the court. 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 for failing to state a claim and failing to prosecute.“Accordingly, the Court DISMISSES this civil action in its entirety based on Ivy’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 September 24, 2020, November 9, 2020, and January 6, 2021 Orders.” | agree with court The dismissal is procedurally sound. The court previously dismissed the complaint for failure to state a claim with leave to amend. The plaintiff was granted two extensions of time to file an amended complaint but failed to do so and did not request further extensions. Under Ninth Circuit precedent, failure to comply with a court's order to amend or respond to an ultimatum is properly met with dismissal under Rule 41(b). The court correctly applied the standard from Edwards v. Marin Park. |
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 appropriate given that the dismissal was based on procedural default (failure to prosecute) and the prior failure to state a claim, which the plaintiff had ample opportunity to cure but did not. There is no indication of a substantial question of law that would warrant an IFP appeal. |
The order itself: sound — The order is sound. It correctly recites the procedural history, including the initial dismissal with leave to amend and the subsequent extensions granted. It applies the correct legal standard for dismissal for failure to prosecute under Rule 41(b) based on the plaintiff's failure to comply with court orders. The citations to Ninth Circuit authority are appropriate and directly support the outcome.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOHN IVY, Case No.: 3:20-cv-01345-CAB-AHG CDCR #AG-0930, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILING TO STATE vs. A CLAIM PURSUANT TO 14 28 U.S.C. § 1915(e)(2)(B) AND C/O P. WINGO, Correctional Officer; 15 § 1915A(b) AND FOR FAILING K. COTTRELL, Correctional Hearing Lt.; TO PROSECUTE IN COMPLIANCE 16 S. ANDERSON, Chief Disciplinary WITH COURT ORDERS Officer; M. POLLARD, Warden, 17 REQUIRING AMENDMENT Defendants. 18 19 20 Plaintiff John Ivy, incarcerated at Richard J. Donovan Correctional Facility (“RJD”) 21 in San Diego, California, is proceeding pro se in this civil rights action, filed pursuant to 22 42 U.S.C. § 1983. In his Complaint, Ivy claimed several RJD officials violated his First, 23 Eighth, and Fourteenth Amendment rights after a contraband phone was discovered in his 24 cell on June 26, 2019. See Compl., ECF No. 1 at 3‒7. Ivy alleged Defendants conspired 25 and retaliated against him and violated his right to due process by employing “illegal policy 26 procedures” during the disciplinary proceedings that followed discovery of the contraband 27 phone. Id. He sought declaratory relief, general and punitive damages according to proof, 28 and demanded a jury trial. Id. at 8. 1 I. Procedural Background 2 On September 24, 2020, the Court granted Ivy’s Motion to Proceed IFP, conducted 3 its mandatory initial screening of his Complaint, and dismissed it sua sponte for failing to 4 state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). See ECF No. 4. The 5 Court also granted Ivy leave to amend and directed him to file an Amended Complaint that 6 addressed all the deficiencies of pleading it identified within 45 days. Id. at 18; see also 7 Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc) (“[A] district court should 8 grant leave to amend even if no request to amend the pleading was made, unless it 9 determines that the pleading could not possibly be cured.”) (citations omitted)). Ivy was 10 further cautioned that if he did not “take advantage of the opportunity to fix his complaint, 11 [the] court [would] convert the dismissal of the complaint into a dismissal of the entire 12 action.” See ECF No. 4 at 18 (quoting Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 13 2005)). 14 On November 6, 2020, well before his Amended Complaint was due, Ivy filed a 15 motion requesting a 90-day extension of time. See ECF No. 7. The Court granted Ivy’s 16 Motion in part—giving him until December 23, 2020 to amend. See ECF No. 8. Ivy failed 17 to comply, and instead, on January 6, 2021, filed a second motion seeking an extension of 18 time. See ECF No. 9. The Court also granted that motion, and directed Ivy to file his 19 Amended Complaint on or before February 5, 2021—essentially giving him the full 90 20 ninety-day extension he first requested. See ECF No. 10. 21 More than a month has elapsed since Ivy’s Amended Complaint was due, and a full 22 five months have passed since the Court first dismissed his original Complaint on 23 September 24, 2020. But Ivy has still failed to file an Amended Complaint, and has not 24 requested additional extension of time in which to do so. “The failure of the plaintiff 25 eventually to respond to the court’s ultimatum–either by amending the complaint or by 26 indicating to the court that [he] will not do so–is properly met with the sanction of a Rule 27 41(b) dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). 28 / / / 1 Conclusion and Order 2 Accordingly, the Court DISMISSES this civil action in its entirety based on Ivy’s 3 || failure to state a claim upon which § 1983 relief can be granted pursuant to 28 U.S.C. 4 1915(e)(2)(B) and § 1915A(b), and his failure to prosecute pursuant to Fed. R. Civ. P. 5 ||41(b) in compliance with the Court’s September 24, 2020, November 9, 2020, and January 6 || 6, 2021 Orders. 7 The Court further CERTIFIES that an IFP appeal would not be taken in good faith 8 || pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk of the Court to enter a final 9 ||judgment of dismissal and to close the file. 10 IT IS SO ORDERED. 11 Dated: March 8, 2021 € 12 Hon. Cathy Ann Bencivengo 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 ee