Pina v. Sacuan Security and Police
- Proceeding
- district
- Area
- civil
- Panel
- John A. Houston (author)
Analysis
The court dismissed the plaintiff's civil rights action for failing to state a claim and for failing to prosecute the case by not filing an amended complaint within the time allowed. The court certified that an in forma pauperis appeal would not be taken in good faith and directed the Clerk to enter final judgment and close the file.
| What the court decided | The model |
|---|---|
Dismissal of the civil action in its entirety“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 December 3, 2021 Order requiring amendment.” | agree with court The dismissal is supported by the plaintiff's failure to file an amended complaint after being given leave to do so, which constitutes a failure to prosecute. The court correctly applied the rule that failure to respond to an order to amend results in dismissal. The prior finding of failure to state a claim is incorporated as a basis for dismissal. |
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 the statutory standard for certifying that an appeal is not in good faith. Given the procedural nature of the dismissal (failure to prosecute) and the prior substantive dismissal, this certification is a standard procedural step in such cases. |
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 as a basis for dismissal for failure to prosecute. It cites appropriate Ninth Circuit authority (Lira and Edwards) to support the conversion of the dismissal of the complaint to a dismissal of the action. The certification of no good faith appeal is standard for such dismissals. The footnote regarding the undeliverable mail and the local rule regarding address updates further supports the finding that the plaintiff failed to prosecute.
How this analysis was made · dispute it
inconsistent with cited authorityOpinion
1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 ROBERT ANTHONY PIÑA, Case No. 3:21-cv01577-JAH-BLM CDCR #BN-1661, 10 ORDER DISMISSING CIVIL Plaintiff, 11 ACTION PURSUANT vs. TO 28 U.S.C. § 1915(e)(2)(B)(ii) AND 12 § 1915A(b)(1) AND FOR FAILING SACUAN SECURITY & POLICE; 13 TO PROSECUTE IN COMPLIANCE SAN DIEGO POLICE DEPARTMENT, WITH COURT ORDER 14 Defendants. REQUIRING AMENDMENT 15 16 Plaintiff Robert Anthony Piña, while incarcerated at Kern Valley State Prison in 17 Delano, California, and proceeding pro se, filed this civil rights Complaint pursuant to 42 18 U.S.C. § 1983 on September 7, 2021. (See “Compl.,” ECF No. 1 at 1.) Piña claimed 19 Sacuan Security and Police and the San Diego Police Department violated his “legal 20 rights” on an unspecified occasion when an unidentified security guard assaulted him at 21 the Sycuan Casino, and refused to return his personal property. (See id. at 3.) 22 I. Procedural History 23 Piña did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) at the time 24 he filed his Complaint, but instead filed a Motion to Proceed In Forma Pauperis (“IFP”) 25 pursuant to 28 U.S.C. § 1915(a). (See ECF No. 2.) On December 3, 2021, the Court 26 granted Piña’s Motion to Proceed IFP, but dismissed his Complaint for failing to state 27 claim and as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1). (See 28 ECF No. 3.) Piña was notified of his pleading deficiencies, and granted 45 days leave in 1 || which to file an Amended Complaint that fixed them. (/d. at 5-9.) Pifia was also warned 2 || his failure to amend would result in the dismissal of his case. (/d. at 9-10, citing Lira v. 3 || Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of 4 ||the opportunity to fix his complaint, a district court may convert the dismissal of the 5 complaint into a dismissal of the entire action.’’).) 6 Pina’s Amended Complaint was due on or before January 17, 2022. More than 7 three weeks have elapsed since that time, but to date, Pifia has failed to amend, and has 8 requested an extension of time in which to do so.! “The failure of the plaintiff 9 || eventually to respond to the court’s ultimatum—either by amending the complaint or by 10 indicating to the court that [he] will not do so—is properly met with the sanction of a Rule 11 ||41(b) dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). 12 Conclusion and Order 13 Accordingly, the Court DISMISSES this civil action in its entirety based on 14 || Plaintiff's failure to state a claim upon which § 1983 relief can be granted pursuant to 28 15 |}U.S.C. § 1915(e)(2)(B)(Gi) and § 1915A(b)(1), and his failure to prosecute as required by 16 || Court’s December 3, 2021 Order requiring amendment. 17 The Court further CERTIFIES that an IFP appeal would not be taken in good 18 || faith pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final 19 || judgment of dismissal and close the file. 20 IT IS SO ORDERED. 21 || Dated: February 9, 2022 Mk 22 23 n. John A. Houston A nited States District Judge 25 26 ' In fact, the Court’s December 3, 2021 Order (ECF No. 3) was returned to the Clerk of Court as 27 || undeliverable by the U.S. Post Office on December 20, 2021, with a notation that Plaintiff was “discharged 3g || from CDCR custody.” (See ECF No. 4 at 1.) “A party proceeding pro se must keep the court and opposing parties advised as to current address” pursuant to S.D. Cal. CivLR 83.11.b.