Vaught IV v. Oppedisano

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

ELBERT LEE VAUGHT IV, Case No. 3:20-cv-1500-MMA-RBB CDCR #H-56089,

ORDER:

Plaintiff, vs. (1) DISMISSING CIVIL ACTION FOR FAILING TO STATE A CLAIM ALBERT OPPEDISANO; JOHN DOE;

PURSUANT TO 28 U.S.C. § 1915(e)(2) CHRISTOPHER HOEFT; GEORGE

AND § 1915A(b); AND

BAKERJIAN,

Defendants. (2) DISMISSING FOR FAILING TO PROSECUTE IN COMPLIANCE WITH COURT ORDER

REQUIRING AMENDMENT

Plaintiff Elbert Lee Vaught IV, while housed at the Richard J. Donovan Correctional Facility, and proceeding pro se, filed this civil rights action pursuant to 42 25 U.S.C. § 1983 on August 4, 2020. See Compl., Doc. No. 1.

I. Procedural History

On September 30, 2020, the Court granted Plaintiff leave to proceed in forma pauperis, but dismissed his Complaint for failing to state any claim upon which relief could be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b). See Doc. No. 7. Plaintiff was advised of his pleading deficiencies and granted leave in which to file an Amended Complaint that fixed them. /d. at 11-12.

Plaintiff's Amended Complaint was due on or before November 30, 2020. But to date, Plaintiff has not filed an Amended Complaint, and has not requested an extension of 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).

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 Fed. R. Civ. P. 41(b) in compliance with the Court’s September 30, 2020 Order.

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 file.

IT ISSO ORDERED.

DATE: January 22, 2021 ah TM = Ls HON. MICHAEL M. ANELLO United States District Judge