Duron v. Yau

Northern District of California, cand-4:2015-cv-01908

ORDER DISMISSING CASE WITHOUT PREJUDICE. Signed by Judge Yvonne Gonzalez Rogers on 11/18/15.

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 MOSES JESUS DURON, 6 Case No. 15-cv-01908-YGR (PR) Plaintiff, 7 ORDER OF DISMISSAL WITHOUT v. PREJUDICE 8 KEVIN YAU, et al., 9 Defendants. 10 11 On October 7, 2015, the Court issued an Order of Dismissal With Leave to Amend. 12 Specifically, the Court granted Plaintiff twenty-eight days from the date of the Order to file an Northern District of California United States District Court 13 amended complaint to correct the deficiencies of his deliberate indifference claim against 14 Defendants. Plaintiff was also instructed that he shall not allege only negligence by any Defendant 15 in responding to his medical condition because such a claim does not violate a prisoner's Eighth 16 Amendment rights. Plaintiff was warned that the failure to timely file an amended complaint would 17 result in the dismissal of this action for failure to prosecute. The time for Plaintiff to file his 18 amended complaint has passed, and no amended complaint has been filed. Taking into account the 19 salient factors set forth in Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992), the Court finds 20 that dismissal is warranted under Federal Rule of Civil Procedure 41(b).1 See Yourish v. Cal. 21 Amplifier, 191 F.3d 983, 989, 992 (9th Cir. 1999) (affirming dismissal of action following plaintiff's 22 failure to amend complaint after receiving leave to do so, where the interest in expeditious resolution 23 of litigation, the court's management of its docket, and avoiding prejudice to defendants favored 24 1 25 If and when Plaintiff is prepared to pursue his claims, he may file a new civil rights action. The limitations period to file a section 1983 action in California is two years, but it is 26 tolled for up to two years during a continuous period of incarceration. See Silva v. Crain, 169 F. 3d 608, 610 (9th Cir. 1999) (holding, pursuant to Cal. Civ. Proc. Code § 340(3), that the 27 limitations period for filing a section 1983 action in California is one year); S.B. 688 (amending Cal. Civ. Proc. Code § 340(3) and adding section 335.1 to establish two-year residual limitations 28 period for personal injury actions); Cal. Civ. Proc. Code § 352.1(a) (providing for an additional two years of tolling during a period of continual imprisonment). 1 dismissal). Accordingly, 2 IT IS HEREBY ORDERED that the complaint in the above-captioned action is 3 DISMISSED WITHOUT PREJUDICE. The Clerk of the Court shall enter judgment, terminate all 4 pending motions and close the file. 5 IT IS SO ORDERED. 6 Dated: November 18, 2015 7 ______________________________________ YVONNE GONZALEZ ROGERS 8 United States District Judge 9 10 11 12 Northern District of California United States District Court 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2