Barrios v. San Diego County Sheriff's Dept
- Proceeding
- district
- Area
- civil
- Panel
- Gonzalo P. Curiel (author)
Analysis
The court reviewed a pro se prisoner's failure to file an amended complaint after a prior dismissal for failure to state a claim. The court dismissed the action for 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 for failure to prosecute“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)(i) 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 principle that a plaintiff's failure to respond to a court's order to amend or withdraw a complaint is properly met with dismissal under Rule 41(b). The record indicates the plaintiff was given 60 days to amend and failed to do so or request an extension. The citation to Edwards v. Marin Park supports this procedural sanction. |
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 court applied 28 U.S.C. § 1915(a)(3) to deny IFP status for an appeal. This is a standard procedural step following a dismissal of a pro se prisoner's case, particularly when the dismissal is based on procedural failure to prosecute after a prior opportunity to cure. |
The order itself: sound — The order is procedurally sound. It correctly identifies the plaintiff's failure to comply with the court's order to amend the complaint within the specified timeframe. It relies on the appropriate Ninth Circuit precedent (Edwards v. Marin Park) to support the dismissal for failure to prosecute. The certification of non-good-faith appeal is consistent with the statutory framework for pro se prisoners.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KEVIN BARRIOS, Case No. 3:21-cv-00680-GPC-LL BOOKING No. 20931063, 12 Plaintiff, 13 ORDER DISMISSING CIVIL vs. ACTION FOR FAILING 14 TO PROSECUTE IN COMPLIANCE SAN DIEGO COUNTY SHERIFF’S 15 WITH COURT ORDER DEPT., 16 Defendant. 17 18 19 I. Introduction 20 On April 16, 2021, Kevin Barrios (“Plaintiff” or “Barrios”), who is proceeding pro 21 se, was incarcerated at the San Diego Central Jail and filed a civil rights complaint pursuant 22 to 42 U.S.C. § 1983 in this Court. ECF No. 1. Plaintiff did not prepay the civil filing fee 23 required by 28 U.S.C. § 1914(a). He did, however, file a Motion to Proceed In Forma 24 Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). ECF No. 2. On May 14, 2021, the Court 25 denied Plaintiff’s IFP motion because he had not provided the Court with a certified trust 26 account statement, dismissed Barrios’s Complaint pursuant to 28 U.S.C. § 1915(a), and 27 granted him sixty days from the date of the dismissal Order to file a properly supported 28 IFP motion. ECF No. 5. 1 On July 8, 2021, Barrios filed a renewed IFP motion. ECF No. 7. The Court granted 2 || Barrios’s IFP motion and dismissed the Complaint for failing to state a claim pursuant to 3 U.S.C. § 1915(e)(2) and § 1915A(b). Jd. Barrios was given sixty days to file an 4 || Amended Complaint which cured the deficiencies of pleading noted in the July 8, 2021 5 || Order. Jd. 6 ||II. Discussion 7 Barrios’s Amended Complaint was due on or before November 1, 2021. To date, he 8 failed to amend, and has not requested an extension of time in which to do so. “The 9 || failure of the plaintiff eventually to respond to the court’s ultimatum—either by amending 10 |} the complaint or by indicating to the court that [he] will not do so—is properly met with the 11 |} sanction of a Rule 41(b) dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 12 || 2004). 13 Conclusion and Order 14 Accordingly, the Court DISMISSES this civil action in its entirety based on 15 || Plaintiff’s failure to state a claim upon which § 1983 relief can be granted pursuant to 28 16 || U.S.C. § 1915(e)(2)(B)Gi) and § 1915A(b)(1), and his failure to prosecute as required by 17 || Court’s July 27, 2021 Order. 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 to enter a final judgment of 20 || dismissal and close the file. 21 IT IS SO ORDERED. 22 Dated: November 30, 2021 <= United States District Judge 25 26 27 28 2 oe