Bernard v. City of San Diego

Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 AMA B. BERNARD, Case No. 21-cv-967-MMA (AGS) Booking #21104941, 13 ORDER DISMISSING CIVIL Plaintiff, 14 ACTION PURSUANT vs. TO 28 U.S.C. § 1915(e)(2)(B)(ii) AND 15 § 1915A(b)(1) AND FOR FAILURE CITY OF SAN DIEGO, Bd. of 16 TO PROSECUTE IN COMPLIANCE Supervisors; WILLIAM GORE, San WITH COURT ORDER 17 Diego County Sheriff’s Dept.; SHERIFF REQUIRING AMENDMENT DEPUTY MORA; JAMES TEH, North 18 County Prosecutor, 19 Defendants. 20 21 22 On May 19, 2021, Plaintiff Ama B. Bernard (“Plaintiff”), while detained at the San 23 Diego Central Jail (“SDCJ”), and proceeding pro se, filed this civil rights Complaint 24 pursuant to 42 U.S.C. § 1983. See Doc. No. 1 (“Compl.”). Plaintiff sought the dismissal 25 of San Diego Criminal Case No. CN404627 and monetary damages against the City of 26 San Diego, the San Diego County Sheriff, a Sheriff’s Department Deputy, and a San 27 Diego County Deputy District Attorney based on claims that they selectively prosecuted, 28 1 falsely imprisoned, and subjected him to unsafe conditions and excessive force at the 2 SDCJ. See id. at 2‒5. 3 Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) at the 4 time he filed his Complaint, but instead filed a Motion to Proceed In Forma Pauperis 5 (“IFP”) pursuant to 28 U.S.C. § 1915(a). See Doc. No. 2. 6 On July 29, 2021, the Court granted Plaintiff’s Motion to Proceed IFP, but 7 dismissed his Complaint for failure to state claim and as frivolous pursuant to 28 U.S.C. 8 § 1915(e)(2)(B)(ii) and § 1915A(b)(1). See Doc. No. 6. The Court notified Plaintiff of 9 his pleading deficiencies and granted him 45 days to file an Amended Complaint that 10 fixed them. See id. at 5‒12. Plaintiff was also warned his failure to amend would result 11 in the dismissal of his case. See id. at 13 (citing Lira v. Herrera, 427 F.3d 1164, 1169 12 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix his 13 complaint, a district court may convert the dismissal of the complaint into a dismissal of 14 the entire action.”)). 15 Plaintiff’s Amended Complaint was due on or before September 13, 2021. More 16 than two weeks have elapsed since that time, but to date, Plaintiff has failed to amend, 17 and has not requested an extension of time in which to do so.1 “The failure of the 18 plaintiff eventually to respond to the court’s ultimatum–either by amending the complaint 19 or by indicating to the court that [he] will not do so–is properly met with the sanction of a 20 Rule 41(b) dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). 21 Accordingly, the Court DISMISSES this civil action in its entirety based on 22 Plaintiff’s failure to state a claim upon which § 1983 relief can be granted pursuant to 28 23 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1), and his failure to prosecute as required by 24 Court’s July 29, 2021 Order requiring amendment. 25 26 1 In fact, the Court’s July 29, 2021 Order, see Doc. No. 6, was returned to the Clerk of Court as 27 undeliverable by the U.S. Post Office on August 12, 2021, with a notation that Plaintiff was “out of custody.” See Doc. No. 7 at 1. “A party proceeding pro se must keep the court and opposing parties 28 1 The Court further CERTIFIES that an IFP appeal would not be taken in good 2 || faith pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final 3 || judgment of dismissal and close the file. 4 IT IS SO ORDERED. 5 || Dated: September 30, 2021 6 BWMiihuh lM Lille 7 HON. MICHAEL M. ANELLO g United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 nA NSCPINANTA □□□