Edwards v. Shakiba
- Proceeding
- district
- Area
- civil
- Panel
- Anthony J. Battaglia (author)
Analysis
The court considered a pro se prisoner's civil rights complaint that had been previously dismissed with leave to amend, but the plaintiff failed to file a required Second Amended Complaint by the deadline. The court dismissed the action in its entirety for failure to prosecute and failure to state a claim, 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 for failure to prosecute and failure to state a claim“Accordingly, the Court DISMISSES this civil action in its entirety 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)(ii) and § 1915A(b)(1), and his failure to prosecute as required by Court’s July 27, 2021 Order.” | agree with court The court correctly applied the standard for dismissal when a plaintiff fails to comply with a court order to amend a complaint. The order cites *Edwards v. Marin Park*, a Ninth Circuit precedent, which establishes that failure to respond to a court's ultimatum to amend or indicate refusal is properly met with a Rule 41(b) dismissal. The record shows the plaintiff was given sixty days to file a Second Amended Complaint after the July 27, 2021 order, and failed to do so or request an extension. The dismissal is procedurally sound and supported by the cited authority. |
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)” | agree with court The court certified that an IFP appeal would not be taken in good faith under 28 U.S.C. § 1915(a)(3). This is a common procedural step in pro se prisoner cases where the court determines the appeal would be frivolous or without merit. The order does not provide detailed reasoning for this certification, but it is a standard practice in such dismissals. |
The order itself: sound — The order is procedurally sound and relies on the correct Ninth Circuit precedent (*Edwards v. Marin Park*) for dismissing a case due to failure to prosecute after a court order to amend. The statutory citations (28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1)) are appropriate for a pro se prisoner case. The court clearly states the deadline and the plaintiff's failure to comply. The certification of an IFP appeal is a standard procedural step. There are no significant gaps or errors in the reasoning.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALLEN EDWARDS, Case No. 3:21-cv-00010-AJB-BLM CDCR #V-17007, 12 Plaintiff, 13 ORDER DISMISSING CIVIL vs. ACTION FOR FAILING 14 TO PROSECUTE IN COMPLIANCE DR. P. SHAKIBA, N. SCHARR, C/O 15 WITH COURT ORDER BROWN, JOHN DOES 1 THROUGH 10, 16 Defendants. 17 18 19 I. Introduction 20 On January 4, 2021, Allen Edwards (“Plaintiff” or “Edwards”), who is proceeding 21 pro se, was incarcerated at R.J. Donovan State Prison and filed a civil rights complaint 22 pursuant to 42 U.S.C. § 1983 in this Court. ECF No. 1. Plaintiff did not prepay the civil 23 filing fee required by 28 U.S.C. § 1914(a); instead, he filed a Motion to Proceed In Forma 24 Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). ECF No. 2. 25 After initially denying Edwards in forma pauperis status, the Court granted 26 Plaintiff’s renewed Motion to Proceed in Forma Pauperis and dismissed Edwards’s 27 Complaint pursuant to 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A(b)(1), and granted 28 1 him sixty days from the date of the dismissal Order to file a First Amended Complaint as 2 to the Eighth and Fourteenth Amendment claims in Count Two only. ECF No. 17. 3 On June 28, 2021, Edwards filed a First Amended Complaint in which he alleged 4 that two correctional officers, Scharr and Brown, improperly denied him special housing 5 to which he was entitled because he is a developmentally disabled inmate. FAC, ECF No. 6 22 at 3. He also claimed he was injured as a result of Scharr and Brown moving him into 7 general population. Id. 8 On July 27, 2021, the Court dismissed the Amended Complaint pursuant to 28 9 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A(b)(1), and gave Edwards sixty days from the 10 date of the dismissal Order to file a Second Amended Complaint. ECF No. 23. 11 II. Discussion 12 Edwards’s Second Amended Complaint was due on or before September 27, 2021. 13 To date, he has failed to amend, and has not requested an extension of time in which to do 14 so. “The failure of the plaintiff eventually to respond to the court’s ultimatum–either by 15 amending the complaint or by indicating to the court that [he] will not do so–is properly 16 met with the sanction of a Rule 41(b) dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 17 1065 (9th Cir. 2004). 18 III. Conclusion and Order 19 Accordingly, the Court DISMISSES this civil action in its entirety based on 20 Plaintiff’s failure to state a claim upon which § 1983 relief can be granted pursuant to 28 21 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1), and his failure to prosecute as required by 22 Court’s July 27, 2021 Order. 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 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: October 7, 2021 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 one