1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER HAWKINS, Case No.: 3:20-cv-02200-WQH-KSC No. 20912411, 12 ORDER: Plaintiff, 13 vs. (1) DISMISSING CIVIL ACTION 14 FOR FAILING TO STATE A CLAIM SAN DIEGO COUNTY, et al., 15 PURSUANT TO

(e)(2) Defendants. AND § 1915A(b) AND FOR FAILING 16 TO PROSECUTE IN COMPLIANCE 17 WITH COURT ORDER REQUIRING AMENDMENT; and 18

19 (2) DENYING PETITION FOR WRIT OF MANDATE [ECF No. 22] 20 21 I. Introduction and Procedural Background 22 On November 10, 2020, Plaintiffs Daryl Dunsmore and Christopher Hawkins filed 23 a pro se civil rights action pursuant

and a Motion to Proceed in Forma 24 Pauperis (“IFP”). ECF Nos. 1–2. On February 16, 2021, the Court denied in part the IFP 25 as to Plaintiff Dunsmore pursuant to

(g) and dismissed the action 26 sua sponte without prejudice as to Plaintiff Dunsmore for failing to prepay the $400 civil 27 and administrative filing fees required by

(a). ECF No. 9. As to Plaintiff 28 Hawkins, the Court granted the IFP and dismissed the action with leave to amend for failing 1 to state a claim upon which § 1983 relief could be granted pursuant to 28 U.S.C. 2 §§ 1915(e)(2)(B) and 1915A(b). ECF No. 9. Hawkins was told that to proceed with his 3 case, he must file an Amended Complaint which cured the pleading deficiencies outlined 4 in the Court’s February 16, 2021 Order no later than sixty days from the date the Order 5 was signed. Id. Plaintiff was also warned his failure to amend would result in the dismissal 6 of his case. Id. at 27 (citing Lira v. Herrera,

(9th Cir. 2005) (“If a 7 plaintiff does not take advantage of the opportunity to fix his complaint, a district court 8 may convert the dismissal of the complaint into a dismissal of the entire action.”)). 9 II. Discussion 10 A. Failure to Prosecute and Failure to Comply With a Court Order 11 Hawkins’ Amended Complaint was due April 19, 2021.

To date, Plaintiff has not 12 filed an Amended Complaint, and has not requested an extension of time in which to do 13 so. “The failure of the plaintiff eventually to respond to the court’s ultimatum–either by 14 amending the complaint or by indicating to the court that [he] will not do so–is properly 15 met with the sanction of a Rule 41(b) dismissal.” Edwards v. Marin Park,

, 16 1065 (9th Cir. 2004). 17 Accordingly, the Court DISMISSES this civil action in its entirety without prejudice 18 based on Plaintiff’s failure to state a claim upon which § 1983 relief can be granted pursuant 19 to

(e)(2)(B)(ii) and § 1915A(b)(1), and his failure to prosecute pursuant 20 to Fed. R. Civ. P. 41(b) in compliance with the Court’s February 16, 2021 Order [ECF No. 21 9]. 22 B. Petition for Writ of Mandate [ECF No. 22] 23 Plaintiff has filed a Petition for Writ of Mandate in which he asks this Court to issue 24 an Order directing Defendants to provide discovery to him. “Mandamus writs, as 25 extraordinary remedies, are appropriate only when a federal officer, employee, or agency 26 owes a nondiscretionary duty to the plaintiff that is ‘so plainly prescribed as to be free from 27 doubt.’” Stang v. IRS,

, 565 (9th Cir. 1986) (quoting Pescosolido v. Block, 28

(9th Cir. 1985). “The federal courts are without power to issue writs of 1 |}mandamus to direct state courts or their judicial officers in the performance of their 2 duties ....” Clark v. Washington,

(9th Cir. 1966). Moreover, as 3 || discussed above, the Court is dismissing this case for failing to comply with the Court’s 4 || February 16, 2021 Order. Accordingly, the Petition is DENIED without prejudice. 5 Conclusion and Order 6 Accordingly, the Court: 7 (1) DISMISSES this case without prejudice based on Plaintiff's failure to state a 8 ||}clatm upon which § 1983 relief can be granted pursuant to

(e)(2)(B)(i1) 9 § 1915A(b)(1), and his failure to prosecute pursuant to Fed. R. Civ. P. 41(b) in 10 |}compliance with the Court’s February 16, 2021 Order [ECF No. 9]; and 1] (2) DENIES Plaintiffs Petition for Writ of Mandate [ECF No. 22] without 12 || prejudice. 13 The Court further CERTIFIES that an IFP appeal would not be taken in good faith 14 || pursuant to

(a)(3) and DIRECTS the Clerk to enter a final judgment of 15 || dismissal and close the file. 16 IT IS SO ORDERED. 17 18 || Dated: June 10, 2021 itt Z. Ma 19 Hon. William Q. Hayes 0 United States District Court 21 22 23 24 25 26 27 28 3