Opinion
Case No. 3:18-cv-00561-MMA-MDD
07-17-2018
ROBERT HATCHER, Booking #17182375, Plaintiff, v. Dr. BLAKE, et al., Defendants.
ORDER DISMISSING CIVIL ACTION PURSUANT TO 28 U.S.C. §§ 1915(e)(2) , 1915A(b) AND FOR FAILING TO PROSECUTE IN COMPLIANCE WITH COURT ORDER REQUIRING AMENDMENT
ROBERT HATCHER ("Plaintiff"), while detained at the San Diego Central Jail ("SDCJ") and proceeding pro se, filed this civil action pursuant to 28 U.S.C. § 1331 and Bivens v. Six Unknown Federal Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), on March 16, 2018. See Compl., Doc. No. 1.
Plaintiff claimed a SDCJ doctor, unidentified medical staff, and "about 5" unnamed nurses denied him medical care, but his pleading contained no factual allegations whatsoever. Id. at 1, 4, 5. Instead, Plaintiff merely attached dozens of SDCJ Sick Call Request and Inmate/Grievance Appeal Forms, copies of San Diego Superior Court Misdemeanor-Judgment Minutes in Criminal Case No. CN381450, and what appeared to be an undated pleading submitted to the Superior Court Judge presiding over that case, requesting that the Judge hold the medical staff at SDCJ in contempt for bias and prejudice against him as a Blackfoot Indian. Id. at 8-49.
I. Procedural History
On May 17, 2018, the Court granted Plaintiff leave to proceed in forma pauperis ("IFP"), but dismissed his Complaint for failing to state claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). See Doc. No. 8. Plaintiff was notified of his pleading deficiencies, and granted 45 days leave to file an Amended Complaint that fixed them, if he could. Id. at 5-9. Plaintiff was further cautioned his failure to amend would result in the dismissal of his case. Id. at 9 (citing Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) ("If a plaintiff does not take advantage of the opportunity to fix his complaint, a district court may convert the dismissal of the complaint into a dismissal of the entire action.")).
Two months have passed since the Court's May 17, 2018 Order, and Plaintiff's Amended Complaint was due on or before July 2, 2018. But to date, Plaintiff has failed to file an Amended Complaint, and has not requested an extension of time in which to do so. "The failure of the plaintiff eventually to respond to the court's ultimatum-either by amending the complaint or by indicating to the court that [he] will not do so-is properly met with the sanction of a Rule 41(b) dismissal." Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). /// ///
In fact, it appears Plaintiff has been released or transferred from SDCJ custody because the Court's May 17, 2018 Order has been returned by the U.S. Post Office as undeliverable. See Doc. No. 9. "A party proceeding pro se must keep the court and opposing parties advised as to current address." S.D. Cal. CivLR 83.11.b. If mail directed to a pro se plaintiff at his last designated address is returned by the Post Office, and no notice of change of address be submitted within 60 days, "the Court may dismiss the action without prejudice for failure to prosecute." Id.; see also
II. Conclusion and Order
Accordingly, the Court DISMISSES this civil action in its entirety without prejudice 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) and § 1915A(b), and his failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b) in compliance with the Court's May 17, 2018 Order requiring amendment (Doc. No. 8).
The Court further CERTIFIES that an IFP appeal would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3) and DIRECTS the Clerk to enter a final judgment of dismissal and close the case.
IT IS SO ORDERED. DATE: July 17, 2018
/s/_________
HON. MICHAEL M. ANELLO
United States District Judge
https://apps.sdsheriff.net/ wij/ Wij AList.aspx?LastName=Hatcher&FirstName=Robert (last visited July 16, 2018) (noting that "[t]he person you are searching for is not in our custody!").