Reyes v. Chief Medical Officer

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LEO ANTHONY REYES, Case No. 20-CV-1445 JLS (JLB) CDCR #F-61110, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION PURSUANT TO v. 28 U.S.C. §§ 1915(e)(2) AND 14 1915A(b) AND FOR FAILING 15 TO PROSECUTE IN COMPLIANCE CHIEF MEDICAL OFFICER; S. GATES, WITH COURT ORDER 16 Chief Medical Officer; and E. ESTOCK, REQUIRING AMENDMENT 17 Doctor for Facility D, 18 Defendants. 19 20 Plaintiff Leo Anthony Reyes, while incarcerated at Calipatria State Prison (“CAL”) 21 and proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983. See ECF 22 No. 1 (“Compl.”). Plaintiff’s Complaint claimed Defendants violated Plaintiff’s Eighth 23 Amendment rights by denying him adequate and timely medical care for knee pain he first 24 reported in June 2019. Id. at 3‒4, 8‒9. 25 On October 26, 2020, the Court granted Plaintiff’s Motion to Proceed in Forma 26 Pauperis (“IFP”) but dismissed his Complaint for failing to state claim pursuant to 28 27 U.S.C. §§ 1915(e)(2) and 1915A(b). See ECF No. 4 (the “Order”). Plaintiff was notified 28 of his pleading deficiencies and granted forty-five days’ leave to file an amended complaint 1 fixing them. Id. at 5‒11. Plaintiff also was warned that failure to amend in compliance 2 with the Order would result in the dismissal of his case. Id. at 12 (citing Lira v. Herrera, 3 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the 4 opportunity to fix his complaint, a district court may convert the dismissal of the complaint 5 into a dismissal of the entire action.”)). 6 Per the Order, Plaintiff’s amended complaint was due on or before December 10, 7 2020. See id. at 11. More than seven full months have passed since the Court issued its 8 Order; however, Plaintiff has yet to file an amended complaint or to request an extension 9 of time in which to do so. In fact, the Court’s October 26, 2020 Order was returned as 10 undelivered by the U.S. Post Office on October 30, 2020, with an “RTS” or “return to 11 sender” notation indicating Plaintiff was no longer at CAL and instead was “OTC.” See 12 ECF No. 5; see also Norton v. Hallock, No. 17-CV-04957 LHK (PR), 2018 WL 5629345, 13 at *2 (N.D. Cal. Oct. 29, 2018) (noting that “OTC” markings on an envelope returned to 14 the court from a prison “mean that plaintiff was ‘out to court’ at the time mail delivery was 15 attempted). The Local Rules of this Court provide that “[a] party proceeding pro se must 16 keep the court and opposing parties advised as to current address.” See S.D. Cal. CivLR 17 83.11(b). And, while the Court has waited patiently for Plaintiff to file a notice of his 18 change of address or at least make some inquiry as to the status of his case, he has filed 19 nothing since first submitting his Complaint and Motion to Proceed IFP almost one year 20 ago. 21 “A court may dismiss an action based on a party’s failure to prosecute [his] case or 22 obey a court order.” O’Neil v. O’Neil, No. 2:20-CV-01050-JAD-DJA, 2020 WL 4692127, 23 at *1 n.6 (D. Nev. Aug. 5, 2020) (citing Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 24 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 25 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 26 amendment of complaint); Carey v. King, 856 F.2d 1439, 1440–41 (9th Cir. 1988) 27 (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court 28 apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) 1 (dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 2 || 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local 3 ||rules)). 4 “The failure of the plaintiff eventually to respond to the court’s ultimatum—either 5 || by amending the complaint or by indicating to the court that [he] will not do so—1s properly 6 || met with the sanction of a Rule 41(b) dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 7 || 1065 (9th Cir. 2004). “[A]t a certain point, the Court must simply move on.” Mendez □□□ 8 || Cmty. Health Clinics, Inc., No. 1:16-CV-00425-DCN, 2021 WL 467195, at *11 (D. Idaho 9 || Feb. 9, 2021). 10 CONCLUSION 11 Accordingly, the Court DISMISSES this civil action in its entirety based on 12 || Plaintiff's failure to state a claim upon which section 1983 relief can be granted pursuant 13 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), as well as his failure to prosecute as required 14 the Court’s October 26, 2020 Order requiring amendment. See S.D. Cal. CivLR 15 83.11(b) (“If mail directed to a pro se plaintiff by the clerk at the plaintiff's last designated 16 || address is returned by the Post Office,” the court may dismiss the case after 60 days without 17 || prejudice for failure to prosecute.) 18 The Court further CERTIFIES that an IFP appeal would not be taken in good faith 19 || pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk of the Court to enter a final 20 || judgment of dismissal and close the file. 21 IT IS SO ORDERED. 22 Dated: June 8, 2021 . tt 23 pee Janis L. Sammartino A United States District Judge 25 26 27 28