Rosete v. California Border Patrol
- Proceeding
- district
- Area
- civil
- Panel
- Gonzalo P. Curiel (author)
Analysis
The court reviewed a pro se plaintiff's failure to file an amended complaint or a valid notice of voluntary dismissal after a prior dismissal with leave to amend. The court dismissed the civil action in its entirety without further leave to amend for failure to state a claim and failure to prosecute.
| What the court decided | The model |
|---|---|
Dismissal of civil action in its entirety without further leave to amend“Accordingly, the Court DISMISSES this civil action in its entirety without further leave to amend based on Plaintiff’s failure to state a claim upon which relief can be granted, and his failure to prosecute pursuant to Fed. R. Civ. P. 41(b) in compliance with the Court’s March 9, 2022 order.” | agree with court The plaintiff was granted leave to amend by a prior order with a specific deadline. The plaintiff failed to file an amended complaint and failed to file a valid notice of voluntary dismissal (the attempt was rejected for lack of signature). Under Federal Rule of Civil Procedure 41(b), a court may dismiss an action for failure to prosecute. The citation to Edwards v. Marin Park supports the proposition that failure to respond to a court's ultimatum to amend or dismiss warrants a Rule 41(b) dismissal. The decision follows from the procedural history and the cited authority. |
The order itself: sound — The order correctly identifies the procedural default (failure to file amended complaint or valid dismissal notice) and applies the appropriate rule (Rule 41(b)) with support from binding Ninth Circuit precedent. The reasoning is concise but sufficient for a procedural dismissal based on inaction.
Opinion
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 ERNESTO ROSETE, an individual, Case No.: 22-cv-89-GPC(AGH) 11 Plaintiff, ORDER DISMISSING CIVIL 12 v. ACTION FOR FAILURE TO STATE A CLAIM AND FOR FAILING TO 13 CALIFORNIA BORDER PATROL, PROSECUTE IN COMPLIANCE 14 Defendant. WITH COURT ORDER 15 16 On January 19, 2022, Plaintiff Ernesto Rosete (“Plaintiff”), proceeding pro se, filed 17 a form complaint against an agent of Defendant California Border Patrol. (Dkt. No. 1, 18 Compl.) He also filed a motion to proceed in forma pauperis. (Dkt. No. 2.) On March 9, 19 2022, the Court granted Plaintiff’s motion to proceed in forma pauperis and sua sponte 20 dismissed Plaintiff’s complaint for failing to state a claim. (Dkt. No. 3.) The Court 21 granted him leave to file an amended complaint no later than April 1, 2022. (Id. at 4.) 22 On March 14, 2022, Plaintiff attempted to file a notice of voluntary dismissal but it was rejected because it was lacking a signature. (Dkt. Nos. 4, 5.) Plaintiff has not filed 23 anything since March 14, 2022. 24 Over five months have passed since Plaintiff’s amended complaint was due and 25 Plaintiff has not filed a proper notice of voluntary dismissal. See Edwards v. Marin Park, 26 356 F.3d 1058, 1065 (9th Cir. 2004) (“The failure of the plaintiff eventually to respond to 27 28 ! the court’s ultimatum—either by amending the complaint or indicating to the court that 2 || the] will not do so—is properly met with the sanction of a Rule 41(b) dismissal.’’) 3 Accordingly, the Court DISMISSES this civil action in its entirety without further 4 || leave to amend based on Plaintiff’s failure to state a claim upon which relief can be 5 || granted, and his failure to prosecute pursuant to Fed. R. Civ. P. 41(b) in compliance with 6 || the Court’s March 9, 2022 order. The Court DIRECTS the Clerk of Court to enter a final 7 judgment of dismissal and to close the file. 8 IT IS SO ORDERED. 9 Dated: October 13, 2022 (2 opto Cs A ) 10 Hon. Gonzalo P. Curiel United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28