Tsetse v. Oakland Police Department and Agency

Northern District of California, cand-4:2015-cv-01909

ORDER DISMISSING CASE WITHOUT PREJUDICE. Signed by Magistrate Judge Donna M. Ryu on 11/12/15.

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 PRINCE FRANKLIN TSETSE, 7 Case No. 15-cv-01909-DMR (PR) Plaintiff, 8 ORDER OF DISMISSAL WITHOUT v. PREJUDICE 9 OAKLAND POLICE DEPARTMENT, 10 et al., 11 Defendants. 12 Plaintiff Prince Franklin Tsetse, who is currently in custody at the Santa Rita Jail, filed a Northern District of California United States District Court 13 pro se civil rights complaint pursuant to 42 U.S.C. § 1983. Dkt. 1. Plaintiff has consented to 14 magistrate judge jurisdiction in this matter. Dkt. 1 at 4. 15 On October 5, 2015, the court issued an Order Dismissing Complaint With Leave To 16 Amend. Specifically, the court granted Plaintiff twenty-eight days from the date of that Order to 17 file an amended complaint correcting the deficiencies of his claims. Plaintiff was warned that the 18 failure to timely file an amended complaint would result in the dismissal of this action for failure 19 to prosecute. The time for Plaintiff to file his amended complaint has passed, and no amended 20 complaint has been filed. Taking into account the salient factors set forth in Ferdik v. Bonzelet, 21 963 F.2d 1258, 1260 (9th Cir. 1992), the court finds that dismissal is warranted under Federal 22 Rule of Civil Procedure 41(b).1 See Yourish v. Cal. Amplifier, 191 F.3d 983, 989, 992 (9th Cir. 23 1999) (affirming dismissal of action following plaintiff's failure to amend complaint after 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 receiving leave to do so, where the interest in expeditious resolution of litigation, the court's 2 management of its docket, and avoiding prejudice to defendants favored dismissal). 3 Accordingly, IT IS HEREBY ORDERED that the complaint in the above-captioned action 4 is DISMISSED WITHOUT PREJUDICE. The Clerk of the Court shall enter judgment, terminate 5 all pending motions and close the file.2 6 IT IS SO ORDERED. 7 Dated: November 12, 2015 ______________________________________ 8 DONNA M. RYU United States Magistrate 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 2 26 As mentioned above, Plaintiff has consented to magistrate judge jurisdiction. The undersigned Magistrate Judge, then, has jurisdiction to dismiss this action, even though 27 Defendants have not served or consented to magistrate jurisdiction. See Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (holding that magistrate judge had jurisdiction to dismiss prison 28 inmate's action under 42 U.S.C. § 1983 as frivolous without consent of defendants because defendants had not been served yet and therefore were not parties). 2 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 PRINCE FRANKLIN TSETSE, Case No. 4:15-cv-01909-DMR 5 Plaintiff, 6 v. CERTIFICATE OF SERVICE 7 OAKLAND POLICE DEPARTMENT AND AGENCY, 8 Defendant. 9 10 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. 11 District Court, Northern District of California. 12 Northern District of California United States District Court 13 That on November 12, 2015, I SERVED a true and correct copy(ies) of the attached, by 14 placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by 15 depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery 16 receptacle located in the Clerk's office. 17 Prince Franklin Tsetse ID: PFN BKB 201 18 Santa Rita Jail 5325 Broder Blvd 19 Dublin, CA 94568 20 21 Dated: November 12, 2015 22 Susan Y. Soong 23 Clerk, United States District Court 24 25 26 By:________________________ 27 Ivy Lerma Garcia, Deputy Clerk to the 28 Honorable DONNA M. RYU