Felix v. Clayton
- Proceeding
- district
- Area
- civil
- Panel
- Gonzalo P. Curiel (author)
Analysis
The court dismissed the plaintiff's civil rights action in its entirety without further leave to amend because the plaintiff failed to file a third amended complaint within the deadline set by the court. The dismissal was based on the plaintiff's failure to state a claim and failure to prosecute.
| What the court decided | The model |
|---|---|
Dismissal of the 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 for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).” | agree with court The court previously granted the plaintiff multiple opportunities to amend the complaint, including a final opportunity with a specific deadline (June 17, 2023). The plaintiff failed to file an amended complaint or seek an extension within that timeframe. Under Ninth Circuit precedent, a district court may dismiss the entire action when a plaintiff fails to take advantage of the opportunity to fix a complaint after being given leave to amend. The court's reliance on Edwards v. Marin Park and Lira v. Herrera supports the conclusion that dismissal of the action is an appropriate sanction for the plaintiff's failure to prosecute. |
The order itself: sound — The order correctly applies the standard for dismissal for failure to prosecute under Rule 41(b) in the context of a pro se prisoner's failure to amend after being granted leave. The court cites binding Ninth Circuit authority that supports converting a dismissal for failure to state a claim into a dismissal of the entire action when the plaintiff fails to amend within the given time. The reasoning is concise but sufficient for this procedural posture.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DONALD FELIX, Case No.: 3:22-cv-0559-GPC-KSC CDCR #AS-4135, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILING TO STATE vs. A CLAIM AND FOR FAILING TO 14 PROSECUTE IN COMPLIANCE 15 WITH COURT ORDER REQUIRING DAVID CLAYTON, S. GATES, S. AMENDMENT 16 ROBERTS, R. BARENCHI, et al., 17 Defendants. 18 19 20 Donald Felix (“Plaintiff”), currently incarcerated at Richard J. Donovan 21 Correctional Facility (“RJD”) and proceeding pro se, filed a civil rights complaint 22 pursuant to 42 U.S.C. § 1983 on April 20, 2022. (Dkt. No. 1, Compl.) Subsequently, on 23 July 28, 2022, the Court granted Plaintiff’s motion to proceed in forma pauperis, and sua 24 sponte dismissed the complaint for failure to state a claim pursuant to 28 U.S.C. § 25 1915(e)(2)(B)(iii) and 28 U.S.C. § 1915A(b)(1) with leave to amend. (Dkt. No. 3.) 26 Plaintiff filed a first amended complaint on September 16, 2022. (Dkt. No. 4.) On 27 September 27, 2022, the Court sua sponte dismissed the first amended complaint for 28 failure to state a claim and granted Plaintiff leave to file a second amended complaint. 1 |] (Dkt. No. 5.) On December 3, 2022, Plaintiff filed a second amended complaint. (Dkt. 2 ||No. 9.) On May 18, 2023, the Court sua sponte dismissed the second amended complaint 3 || for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)Gii) and 28 U.S.C. § 4 1915A(b)(1) with one final opportunity to amend his Eighth Amendment claim as to 5 Defendant Clayon only. (Dkt. No. 10.) Plaintiff was granted 30 days from the date of 6 Court’s order, or June 17, 2023, to file a third amended complaint. (U/d.) Over two 7 months have passed since the Court’s dismissal order, and to date, Plaintiff has not filed a 8 || third amended complaint nor sought an extension of time to file one. Accordingly, the 9 Court DISMISSES this civil action in its entirety without further leave to amend based on 10 || Plaintiff's failure to state a claim upon which relief can be granted and for failure to 11 || prosecute pursuant to Federal Rule of Civil Procedure 41(b). See Edwards v. Marin 12 || Park, 356 F.3d 1058, 1065 (9th Cir. 2004) (“The failure of the plaintiff eventually to 13 respond to the court’s ultimatum—either by amending the complaint or indicating to the 14 || court that [she] will not do so—is properly met with the sanction of a Rule 41(b) 15 || dismissal.”’); Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not 16 advantage of the opportunity to fix his complaint, a district court may convert the 17 || dismissal of the complaint into dismissal of the entire action.”). The Court DIRECTS the 18 || Clerk of Court to enter final judgment of dismissal and to close the file. 19 IT IS SO ORDERED. 20 ||Dated: September 12, 2023 21 Hon. athe Cae 22 United States District Judge 23 24 25 26 27 28