Rosenthal v. Newsome
- Proceeding
- district
- Area
- civil
- Panel
- Michael M. Anello (author)
Analysis
The court reviewed a pro se civil rights complaint that had been previously dismissed with leave to amend, but the plaintiff failed to file an amended complaint or request an extension. The court dismissed the action in its entirety for failure to state a claim and failure to prosecute, 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 state a claim and failure to prosecute“Accordingly, the Court DISMISSES this civil action in its entirety based on Plaintiffs failure to state a claim upon which § 1983 relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)a1) and § 1915A(b)(1) for the reasons set forth in the Court’s August 2021 Order, and his failure to prosecute as required by the Court’s Order.” | agree with court The dismissal is procedurally sound. The court previously granted leave to amend with a specific deadline. The plaintiff failed to file an amended complaint or request an extension. Under Federal Rule of Civil Procedure 41(b), a court may dismiss an action for failure to prosecute. The court correctly cited Edwards v. Marin Park to support the proposition that failure to respond to a court's ultimatum to amend or withdraw warrants dismissal. The court also correctly applied the screening statutes (28 U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(1)) which allow for dismissal of prisoner complaints that fail to state a claim. |
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 has the authority to certify under 28 U.S.C. § 1915(a)(3) that an appeal is not taken in good faith. Given that the dismissal was based on the plaintiff's failure to comply with a court order to amend or withdraw, and the underlying claims were previously found to fail to state a claim, the certification is a standard procedural step in such dismissals. The order does not provide detailed reasoning for the certification, but it is consistent with the outcome of the dismissal. |
The order itself: sound — The order is a short, procedural dismissal based on the plaintiff's failure to comply with a previous court order to amend the complaint. The court correctly identifies the applicable statutes for screening prisoner complaints and the rule for failure to prosecute. It cites the appropriate Ninth Circuit authority (Edwards v. Marin Park) for the proposition that failure to respond to an ultimatum to amend warrants dismissal. The reasoning is concise but sufficient for this type of procedural dismissal. There are no significant gaps or questionable legal applications.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TROY ALLAN ROSENTHAL, Case No. 21-cv-1356-MMA (BLM)
12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILURE TO STATE vs. A CLAIM AND FOR FAILURE TO 14 PROSECUTE IN COMPLIANCE GAVIN NEWSOME, et al., 15 WITH COURT ORDER Defendants. 16 17 18 On July 23, 2021, Troy Allan Rosenthal (“Plaintiff”), proceeding pro se, was housed 19 at Vista Detention Facility and filed a civil rights complaint pursuant to 42 U.S.C. § 1983 20 in this Court. See Doc. No. 1. Plaintiff did not prepay the civil filing fee required by 28 21 U.S.C. § 1914(a); instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant 22 to 28 U.S.C. § 1915(a). See Doc. No. 2. The Court granted Plaintiff’s Motion to Proceed 23 in Forma Pauperis and dismissed Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915(e)(2) 24 and 28 U.S.C. § 1915A(b)(1). Doc. No. 4. The Court granted Plaintiff forty-five (45) days 25 from the date of the dismissal Order to file a First Amended Complaint. Id. 26 Thus, Plaintiff’s First Amended Complaint was due on or before October 5, 2021. 27 To date, he has failed to amend, and has not requested another extension of time in which 28 to do so. “The failure of the plaintiff eventually to respond to the court’s ultimatum–either 1 || by amending the complaint or by indicating to the court that [he] will not do so—is properly 2 || met with the sanction of a Rule 41(b) dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 3 || 1065 (9th Cir. 2004). 4 Accordingly, the Court DISMISSES this civil action in its entirety based on 5 || Plaintiffs failure to state a claim upon which § 1983 relief can be granted pursuant to 28 6 || U.S.C. § 1915(e)(2)(B)a1) and § 1915A(b)(1) for the reasons set forth in the Court’s August 7 2021 Order, and his failure to prosecute as required by the Court’s Order. The Court 8 || further CERTIFIES that an IFP appeal would not be taken in good faith pursuant to 28 9 ||U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final judgment of dismissal and 10 || close the file. 11 IT IS SO ORDERED. 12 Dated: November 17, 2021 13 Mukul Md teller 14 HON. MICHAEL M. ANELLO 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 2 nA NAVAS RARTA □□□□□□