Baker v. Battad

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

TOMMIE LEE BAKER, III, Case No.: 19-CV-1438-AJB (BLM) Plaintiff,

ORDER DISMISSING ACTION v. WITHOUT PREJUDICE

R. BATTAD AND O. ARIZAGA,

Defendants.

This matter is a prisoner pro se action filed pursuant to 42 U.S.C. § 1983. On June 24, 2020, the Court adopted the Magistrate Judge’s Report and Recommendation, and granted in part and denied in part Defendants’ motion to dismiss. (Doc. No. 15.) The Court granted Plaintiff leave to amend his Complaint, and directed Plaintiff to file an Amended Complaint by August 1, 2020. (Id.) Having missed the deadline, and seeing no further activity, on January 25, 2021, the Court ordered Plaintiff to show cause as to why Plaintiff’s case should not be dismissed for failure to prosecute. (Doc. No. 18.) The Court warned that failure to show cause by February 26, 2021 will result in the dismissal of Plaintiff’s case. (Id.) That date has come and passed, and Plaintiff still has not amended his Complaint, filed for an extension of time, or otherwise indicated he is still interested in prosecuting his | case. “The failure of the plaintiff eventually to respond to the court’s ultimatum — either by amended 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).

Accordingly, the Court DISMISSES this action in its entirety without prejudice lbased on Plaintiff's failure to prosecute pursuant to Fed. R. Civ. P. 41(b). See Lira vy. 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.”’).

The Clerk of Court is DIRECTED to CLOSE THIS CASE.

IS SO ORDERED.

Dated: March 3, 2021

Hon. Anthony J Hatta

United States District Judge