Rubio v. Allison
- Yvonne Rogers
- 4:21-cv-00921
- U.S. District Court · Northern District of California
- 2
In Rubio v. Allison, Judge Rogers dismissed the complaint without prejudice after Rubio failed to amend it as ordered.
Robert Louis Rubio's complaint was dismissed without prejudice, affecting his current action against Kathleen Allison and the other named defendants.
What happened
In Rubio v. Allison, the court had given Robert Louis Rubio 28 days to file an amended complaint stating a valid constitutional claim. The court warned that missing the deadline could lead to dismissal for failing to prosecute the case.
The deadline passed, and Rubio did not file an amended complaint. The court dismissed the complaint without prejudice under Federal Rule of Civil Procedure 41(b) and directed the clerk to close the file. The order noted that Rubio could file a new civil-rights action if he was prepared to pursue his claims.
Judge Yvonne Gonzalez Rogers issued the dismissal on September 16, 2021.
The detailed version
- Rubio v. Allison · No. 4:21-cv-00921
- Yvonne Rogers
- Sept. 16, 2021
Background
On July 26, 2021, the court dismissed Robert Louis Rubio's complaint but gave him leave to amend. The court allowed 28 days for Rubio to file an amended complaint alleging facts sufficient to state a cognizable constitutional claim. The court warned that failing to file the amendment on time could result in dismissal for failure to prosecute, meaning failure to move the case forward.
Court's reasoning
The deadline passed without Rubio filing an amended complaint. Applying the factors identified in Ferdik v. Bonzelet, the court found dismissal warranted under Federal Rule of Civil Procedure 41(b), which permits dismissal when a plaintiff fails to prosecute or comply with court rules or orders. The court cited Yourish v. California Amplifier as supporting dismissal after a plaintiff fails to amend following an opportunity to do so.
Disposition
The court ordered that the complaint be dismissed without prejudice and directed the clerk to close the file. The opinion stated that, if Rubio was prepared to pursue his claims, he could file a new civil-rights action. Its footnote also discussed the limitations period and tolling rules for a claim under 42 U.S.C. § 1983. Judge Yvonne Gonzalez Rogers signed the order.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.