1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JEFFERY LEE MOURNING, Case No. 3:18-cv-02245-WQH-RBM Inmate Booking No. 1814430, 12

ORDER DISMISSING ACTION FOR

Plaintiff, 13 FAILING TO PROSECUTE IN vs. COMPLIANCE WITH COURT 14

ORDER

15

WILLIAM GORE; SECURUS

16

TELEPHONE CO.; JOHN & JANE

17 DOES 1 THROUGH 10, 18 Defendants. 19 20 21 The matter before the Court is the Motion to Dismiss Plaintiff’s Complaint filed by 22 Defendant William Gore. ECF No. 17. 23 I. Procedural History 24 On September 26, 2018, Plaintiff Jeffery Lee Mourning, while formerly housed at 25 the George Bailey Detention Facility (“GBDF”) located in San Diego, California, and 26 proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983. See Compl., 27 ECF No. 1. On January 3, 2019, the Court granted Plaintiff leave to proceed in forma 28 pauperis (“IFP”) and directed the United States Marshal Service (“USMS”) to effect 1 service of the Complaint on the named Defendants. See ECF No. 3. On February 13, 2019, 2 Plaintiff filed a “Motion Pursuant to Amend.” ECF No. 8. On February 20, 2019, United 3 States Magistrate Judge Ruth Bermudez Montenegro construed this as a motion seeking 4 leave to file an amended pleading and issued a Report and Recommendation 5 recommending Plaintiff’s Motion be granted. See ECF No. 12 at 12. On April 25, 2019, 6 this Court adopted Magistrate Judge Montenegro’s Report and Recommendation and 7 informed Plaintiff that he “shall file an amended complaint, complete in itself without 8 reference to the superseded pleading, within thirty days of the entry of this Order.” ECF 9 No. 14 at 2. 10 To date, Plaintiff has failed to amend and has not asked for an extension of time in 11 which to do so. On August 5, 2019, Defendant William Gore filed a Motion to Dismiss 12 Plaintiff’s Complaint pursuant to Federal Rule of Civil Procedure 41(b). ECF No. 17. 13 II. Defendant’s Motion 14 Federal Rule of Civil Procedure 41(b) states, in part, that if a plaintiff “fails to 15 prosecute or to comply with these rules or a court order, a defendant may move to dismiss 16 the action or any claim against it.” The Ninth Circuit has held that where a “plaintiff has 17 not filed an amended complaint after being given leave to do so and has not notified the 18 court of his intention not to file an amended complaint,” the Court may “deem the dismissal 19 to be for failure to comply with a court order” pursuant to Rule 41(b). Harris v. Mangum, 20 863 F.3d 1133, 1142 (9th Cir. 2017). 21 In this case, Plaintiff had thirty (30) days from the date the Court filed the April 25, 22 2019, Order to file his amended pleading. Plaintiff has not filed anything with this Court 23 since February 13, 2019. See ECF No. 10. On September 20, 2019, the Court’s briefing 24 schedule was returned to the Court “undeliverable” with the notation “out of custody.” 25 ECF No. 19. “The failure of the plaintiff eventually to respond to the court’s ultimatum– 26 either by amending the complaint or by indicating to the court that [he] will not do so–is 27 properly met with the sanction of a Rule 41(b) dismissal.” Edwards v. Marin Park, 356 28 F.3d 1058, 1065 (9th Cir. 2004). 1 Conclusion and Order 2 Defendant Gore’s Motion to Dismiss is GRANTED. This civil action is 3 ||DISMISSED in its entirety without prejudice based on Plaintiffs failure to prosecute 4 || pursuant to Federal Rule of Civil Procedure 41(b) in compliance with the Court’s April 25, 5 ||2019, Order. The Clerk of Court is directed to close the file. 6 IT IS SO ORDERED. 7 || Dated: October 30, 2019 BME: ie Z. A a 8 Hon. William Q. Hayes 9 United States District Court 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 oo