Rosenthal v. Newsome

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

TROY ALLAN ROSENTHAL, Case No. 21-cv-1356-MMA (BLM)

ORDER DISMISSING CIVIL

Plaintiff,

ACTION FOR FAILURE TO STATE vs. A CLAIM AND FOR FAILURE TO PROSECUTE IN COMPLIANCE

GAVIN NEWSOME, et al.,

WITH COURT ORDER

Defendants.

On July 23, 2021, Troy Allan Rosenthal (“Plaintiff”), proceeding pro se, was housed at Vista Detention Facility and filed a civil rights complaint pursuant to 42 U.S.C. § 1983 in this Court. See Doc. No. 1. Plaintiff did not prepay the civil filing fee required by 28 21 U.S.C. § 1914(a); instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See Doc. No. 2. The Court granted Plaintiff’s Motion to Proceed in Forma Pauperis and dismissed Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A(b)(1). Doc. No. 4. The Court granted Plaintiff forty-five (45) days from the date of the dismissal Order to file a First Amended Complaint. Id. Thus, Plaintiff’s First Amended Complaint was due on or before October 5, 2021. To date, he has failed to amend, and has not requested another 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).

Accordingly, the Court DISMISSES this civil action in its entirety based on Plaintiffs failure to state a claim upon which § 1983 relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)a1) and § 1915A(b)(1) for the reasons set forth in the Court’s August 2021 Order, and his failure to prosecute as required by the Court’s 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 IS SO ORDERED.

Dated: November 17, 2021

Mukul Md teller HON. MICHAEL M. ANELLO United States District Judge

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