Roettgen
v.
Paramo

This case is not covered by Casetext's citator
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIANov 7, 2018
Case No.: 3:16-cv-01806-LAB-BGS (S.D. Cal. Nov. 7, 2018)

Case No.: 3:16-cv-01806-LAB-BGS

11-07-2018

JOHN ROETTGEN, Plaintiff, v. D. PARAMO, ET AL., Defendant.


ORDER DISMISSING CIVIL ACTION FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2) AND § 1915A(b) AND FOR FAILING TO PROSECUTE IN COMPLIANCE WITH COURT ORDER REQUIRING AMENDMENT

I. Procedural History

Plaintiff, an inmate currently incarcerated at the California State Prison - Sacramento, located in Represa, California, initially filed this action on July 11, 2016. (ECF No. 1.) On July 21, 2016, this Court granted Plaintiff's Motion to Proceed In Forma Pauperis ("IFP") and dismissed his Complaint ("FAC") pursuant to 28 U.S.C. § 1915(e)(2). (ECF No. 3.) The Court found a number of deficiencies in his pleading but nevertheless, Plaintiff was granted forty-five (45) days leave to file an amended complaint. (Id. at 10-11.)

On February 13, 2017, nearly seven months after the Court dismissed this action, Plaintiff filed a "Motion for Copy of Court Order, Reinstate Case and for 45 days in which to file First Amended Complaint." (ECF No. 5.) The Court denied Plaintiff's Motion to reopen the case but granted him additional time to file an amended complaint. (ECF No. 5.) The Court also directed the Clerk of Court to mail a copy of the Court's July 21, 2016 Order to Plaintiff. (Id.) Plaintiff then filed second extension of time and claimed that prison officials had confiscated his legal materials. (ECF No. 8.) The Court granted Plaintiff's request for additional time on August 1, 2017. (ECF No. 9.) However, Plaintiff waited an additional year to bring his third request for an extension of time to file his First Amended Complaint. (ECF No. 11.)

Nonetheless, on September 13, 2018 the Court found good cause to grant Plaintiff one final extension of time in which to comply with its July 21, 2016 Order, and permitted Plaintiff an additional forty five (45) days to file his First Amended Complaint. (ECF No. 12.) Plaintiff was cautioned that if he failed to comply with the Court's Order, the Court would enter a final Order of dismissal. (Id.)

The 45 days given to file an amended pleading has since passed. Plaintiff has failed to amend, and has not asked for 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).

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) as set forth in the Court's July 21, 2016 Order, and his failure to prosecute pursuant to FED. R. CIV. P. 41(b) in compliance with the Court's September 13, 2018 Order. The Clerk of Court shall close the file.

IT IS SO ORDERED. Dated: November 7, 2018

/s/_________


Hon. Larry Alan Burns


United States District Judge