Cunningham v. Ramos
- Proceeding
- district
- Area
- civil
- Panel
- John A. Houston (author)
Analysis
The court dismissed a civil rights action filed by a prisoner for failure to prosecute after the plaintiff failed to respond to a prior order requiring him to amend his complaint or proceed with the surviving claims. The court 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 for failure to prosecute“The Court DISMISSES this civil action in its entirety based on Plaintiffs failure to satisfy the filing fee requirement and failure to prosecute this action.” | agree with court The court correctly applied the principle that a plaintiff's failure to respond to a court's order to amend or proceed is grounds for dismissal under Rule 41(b). The record indicates the plaintiff was given 45 days to respond to the August 7, 2023 order, and no response or extension request was received. The citation to Edwards v. Marin Park supports the conclusion that such failure warrants dismissal. |
The order itself: sound — The order is procedurally sound. It recites the procedural history, including the initial dismissal for failure to pay fees, the subsequent grant of IFP status, the screening order that dismissed one defendant and gave leave to amend, and the plaintiff's failure to respond to that screening order. The court correctly cites Edwards v. Marin Park for the proposition that failure to respond to an order to amend warrants dismissal. The reasoning directly addresses the motion (or lack thereof) and applies the correct legal standard.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MELVIN LYNN CUNNINGHAM, Jr. Case No.: 3:23-cv-00351-JAH-NLS CDCR # F78919 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILURE TO vs. PROSECUTE 14 15 ALFONSO RAMOS, Correctional 16 Officer; JESSICA MORA, Correctional 17 Officer, 18 Defendants. 19 20 On February 21, 2023, Melvin Cunnigham Jr. (“Plaintiff” or “Cunningham”), filed 21 a civil rights action (“Compl.”) pursuant to 42 U.S.C. § 1983. See ECF No. 1. While he 22 later filed a Prisoner Trust Account Statement on February 24, 2023, the Court dismissed 23 the case on April 25, 2023 without prejudice because Cunningham had failed to either pay 24 the civil filing fee or file a Motion to Proceed in Forma Pauperis (“IFP”). See ECF Nos. 3, 25 5. Cunningham was given forty-five (45) days from the date of the Order to either pay the 26 $402 civil filing fee or file an IFP motion together with a certified trust account statement 27 or prison certificate. ECF No. 5. 28 / / / 1 On June 14, 2023, Cunningham filed an IFP motion, then filed a Prison Trust 2 || Account Statement on June 20, 2023. ECF Nos. 6—7. The Court screened the Complaint 3 || pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b) and on August 7, 2023, issued an Order 4 || granting Cunningham’s IFP motion, concluding that Cunningham had stated a First and 5 Eighth Amendment claim against Defendant Ramos, and dismissing his claims against 6 Defendant Mora for failing to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i1). 7 ||Cunningham was given forty-five (45) days from the date of the Order to choose to proceed 8 || with his claims against Defendant Ramos only, or file a First Amended Complaint that 9 || corrected the deficiencies outlined in the Court’s dismissal Order. ECF No. 8. 10 Discussion 11 The time for Plaintiff to respond to the Court’s Order has passed and the Court has 12 received no communication from Plaintiff. He has not responded to the Court’s August 7, 13 Order, and has not requested an extension of time in which to do. “The failure of the 14 || plaintiff eventually to respond to the court’s ultimatum—either by amending the complaint 15 |/or by indicating to the court that [he] will not do so—is properly met with the sanction of a 16 || Rule 41(b) dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). 17 Conclusion and Order 18 The Court DISMISSES this civil action in its entirety based on Plaintiffs failure to 19 satisfy the filing fee requirement and failure to prosecute this action. The Court DIRECTS 20 Clerk to enter a final judgment of dismissa] andj cloge the file. 21 || Dated: October 27, 2023 a John A. Houston Umited States District Court 23 24 25 26 27 28 2 ee