Harper v. George Bailey Detention Facility
- Proceeding
- district
- Area
- civil
- Panel
- Cathy Ann Bencivengo (author)
Analysis
The court considered a pro se prisoner's civil rights action that had been dismissed twice for failure to state a claim, with the plaintiff granted leave to amend each time. The court dismissed the action in its entirety for failure to prosecute after the plaintiff failed to file a Second Amended Complaint or request an extension within the deadline.
| 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 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 June 15, 2021 Order requiring amendment.” | agree with court The court properly applied the screening statutes to dismiss the complaint for failure to state a claim after two opportunities to amend. The dismissal for failure to prosecute is supported by the plaintiff's failure to file an amended complaint or request an extension after being given a specific deadline and warning of dismissal. The citation to Edwards v. Marin Park supports the use of Rule 41(b) dismissal for failure to respond to a court's ultimatum. |
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 certified that an appeal would not be taken in good faith, which is a standard procedural step in pro se prisoner cases where the claims are meritless and the plaintiff has failed to prosecute. The order does not provide specific reasoning for this certification, but it is consistent with the dismissal for failure to state a claim and failure to prosecute. |
The order itself: sound — The order is procedurally sound. It recites the history of the case, including the two prior dismissals for failure to state a claim and the leave to amend granted each time. It notes the specific deadline for the Second Amended Complaint and the plaintiff's failure to meet that deadline or request an extension. The court correctly cites Edwards v. Marin Park to support the dismissal for failure to prosecute. The certification of no good faith appeal is standard in such cases. The order is concise but contains all necessary elements for a valid dismissal order.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JACOBY C. HARPER Case No.: 3:20-cv-02409-CAB-LL #19746599, 12 ORDER DISMISSING CIVIL Plaintiffs, 13 ACTION PURSUANT vs. TO 28 U.S.C. § 1915(e)(2)(B)(ii) AND 14 § 1915A(b)(1) AND FOR FAILING 15 TO PROSECUTE IN COMPLIANCE SAN DIEGO COUNTY, SAN DIEGO WITH COURT ORDER 16 COUNTY JAIL, SAN DIEGO REQUIRING AMENDMENT 17 “PERSONS,” 18 Defendants. 19 20 On December 9, 2020, Plaintiff Jacoby C. Harper (“Harper” or “Plaintiff”), 21 currently incarcerated at George Bailey Detention Facility (“GBDF”), filed a pro se civil 22 rights action pursuant 42 U.S.C. § 1983. See ECF No. 1. Harper also filed a Motion to 23 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See ECF No. 2. On 24 March 15, 2021, the Court granted Plaintiff’s IFP Motion and dismissed the Complaint 25 for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. 26 § 1915A(b). ECF No. 3. The Court gave Plaintiff 60 days to file a First Amended 27 Complaint which would cure the deficiencies of pleading noted in the Court’s Order. Id. 28 at 7. On April 22, 2021, Plaintiff filed a First Amended Complaint but it too failed to 1 || state a claim upon which relief could be granted and was dismissed sua sponte pursuant 2 ||to 28 U.S.C. § 1915(e)(2) and § 1915A(b) on June 15, 2021. ECF No. 4. Plaintiff was 3 again granted leave to amend, and reminded that if he did not, the Court would dismiss 4 || the entire case. Jd. at 8. 5 Plaintiff's Second Amended Complaint was due no later than August 2, 2021. 6 || More than three months have elapsed since that time, but to date, Plaintiff has failed to 7 amend and has not requested an extension of time in which to do so. “The failure of the 8 || plaintiff eventually to respond to the court’s ultimatum—either by amending the complaint 9 by indicating to the court that [he] will not do so—is properly met with the sanction of a 10 || Rule 41(b) dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). 11 CONCLUSION AND ORDER 12 Accordingly, the Court DISMISSES this civil action in its entirety based on 13 || Plaintiff's failure to state a claim upon which § 1983 relief can be granted pursuant to 28 14 || U.S.C. § 1915(e)(2)(B)Gi) and § 1915A(b)(1), and his failure to prosecute as required by 15 || Court’s June 15, 2021 Order requiring amendment. The Court further CERTIFIES that 16 || an IFP appeal would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) and 17 || DIRECTS the Clerk to enter a final judgment of dismissal and close the file. 18 IT IS SO ORDERED. 19 Dated: December 2, 2021 € 20 Hon. Cathy Ann Bencivengo 21 United States District Judge 22 23 24 25 26 27 28 2 oo