Acuna v. Pollard
- Proceeding
- district
- Area
- civil
- Panel
- Linda Lopez (author)
Analysis
The court considered a pro se prisoner's civil rights complaint that had previously been 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“Accordingly, the Court DISMISSES this civil action in its entirety based on Plaintiffs failure to state a clatm upon which § 1983 relief can be granted pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b), and his failure to prosecute as required by Court’s January 20, 2022 Order requiring amendment.” | 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 Ninth Circuit precedent, failure to comply with a court order to amend a complaint after being given leave to do so warrants dismissal of the entire action under Rule 41(b). The court correctly cited *Edwards v. Marin Park* for this proposition. |
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 is authorized to certify under 28 U.S.C. § 1915(a)(3) that an appeal would not be taken in good faith. While the order does not provide a detailed analysis of why the appeal would not be in good faith, this is a common procedural step in pro se prisoner cases where the underlying claims were previously found deficient and the plaintiff failed to cure those deficiencies. The certification is a discretionary determination by the district court. |
The order itself: sound — The order is sound. It correctly identifies the procedural history, the plaintiff's failure to comply with the court's order to amend, and applies the correct legal standard from Ninth Circuit precedent (*Edwards* and *Lira*) to justify dismissal of the entire action. The certification of IFP appeal is a standard procedural conclusion in this context.
Opinion
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 ALEX I. ACUNA, Case No. 21cv01910-LL-AGS CDCR #P-85538, 11 ORDER DISMISSING CIVIL Plaintiff, 12 ACTION PURSUANT TO 28 U.S.C. v. § 1915(e)(2) AND § 1915A(b) AND 13 FOR FAILING TO PROSECUTE IN MARCUS POLLARD, et al., 14 COMPLIANCE WITH COURT Defendants. ORDER REQUIRING AMENDMENT 15 16 17 Plaintiff Alex Acuna (“Plaintiff” or “Acuna”), while incarcerated at R.J. Donovan 18 State Prison in San Diego, California, and proceeding pro se, filed this civil rights 19 Complaint pursuant to 42 U.S.C. § 1983 on October 29, 2021 in the United States District 20 Court for the Northern District of California. See “Compl.,” ECF No. 1 at 1. The case was 21 transferred to this Court on November 10, 2021. See ECF No. 4. In his Complaint, Acuna 22 claimed prison officials were not protecting inmates from Covid-19 and that he contracted 23 the disease as a result. Id. at 3–4. 24 I. Procedural History 25 Acuna did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) at the time 26 he filed his Complaint, but instead filed a Motion to Proceed In Forma Pauperis (“IFP”) 27 pursuant to 28 U.S.C. § 1915(a). See ECF No. 2. On January 20, 2022, the Court granted 28 Acuna’s Motion to Proceed IFP, but dismissed his Complaint for failing to state claim 1 || pursuant to 28 U.S.C. § 1915(e)(2)) and § 1915A(b). See ECF No. 7. Acuna was notified 2 ||of his pleading deficiencies, and granted 45 days leave in which to file an Amended 3 Complaint that fixed them. /d. at 6-11. Acuna was also warned his failure to amend would 4 ||result in the dismissal of his case. /d. at 11, citing Lira v. Herrera, 427 F.3d 1164, 1169 5 ||(9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix his 6 complaint, a district court may convert the dismissal of the complaint into a dismissal of 7 entire action.’’) 8 Acuna’s Amended Complaint was due on or before March 7, 2022. More than four 9 || weeks have elapsed since that time, but to date, Acuna has failed to amend, and has not 10 || requested an extension of time in which to do so. “The failure of the plaintiff eventually to 11 |/respond to the court’s ultimatum — either by amending the complaint or by indicating to 12 ||the court that [he] will not do so — is properly met with the sanction of a Rule 41(b) 13 || dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). 14 II. Conclusion and Order 15 Accordingly, the Court DISMISSES this civil action in its entirety based on 16 || Plaintiffs failure to state a clatm upon which § 1983 relief can be granted pursuant to 28 17 || U.S.C. § 1915(e)(2) and § 1915A(b), and his failure to prosecute as required by Court’s 18 || January 20, 2022 Order requiring amendment. 19 The Court further CERTIFIES that an IFP appeal would not be taken in good faith 20 || pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final judgment of 21 dismissal and close the file. 22 IT IS SO ORDERED. 23 ||Dated: April 11, 2022 NO 24 DE | 25 Honorable Linda Lopez United States District Judge 27 28 2