Roberto Leveron v. W. Z. Jenkins

[6] UNITED STATES DISTRICT COURT [7] CENTRAL DISTRICT OF CALIFORNIA [9] 10 ROBERTO LEVERON, Case No. 2:23-cv-04914-RGK (MAR) 11 Plaintiff, MEMORANDUM AND ORDER DISMISSING CASE 12 v. 13 W. Z. JENKINS ET AL, 14 Defendant. [15] 16 I. 17 INTRODUCTION 18 On June 3, 2023, Roberto Leveron (“Plaintiff”), proceeding pro se and in 19 forma pauperis (“IFP”), constructively filed1 a Civil Rights Complaint (“Complaint”) 20 pursuant to 42 U.S.C. § 1983 . ECF Docket No. (“Dkt.”) 1.2 On August 28, 2023, 21 the Court issued an Order Dismissing the Complaint with Leave to Amend 22 (“ODLA”), granting Plaintiff thirty (30) days to file a First Amended Complaint 23 (“FAC”). Dkt. 12. On October 12, 2023 and November 14, 2023, the Court issued 24 Orders to Show Cause (“OSC”) why the Complaint should not be dismissed for lack [25] 26 1 Under the “mailbox rule”, when a pro se prisoner gives prison authorities a pleading to mail to the court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v. [27] Marshall, 627 F.3d 768 , 770 n.1 (9th Cir. 2010). 1 of prosecution. Dkts. 13, 14. To date, Plaintiff has failed to comply with the Court’s 2 Orders. 3 For the reasons below, the Court DISMISSES this action, without prejudice. 4 II. 5 BACKGROUND 6 On June 3, 2023, Plaintiff constructively filed the instant Complaint. Dkt. 1. 7 August 28, 2023, the Court issued an ODLA, granting Plaintiff until September 27, 8 2023 to file a FAC. Dkt. 12. 9 On October 12, 2023, this Court issued an OSC, ordering Plaintiff to show by 10 November 3, 2023 why this action should not be dismissed for failure to prosecute. 11 Dkt. 13. Plaintiff was warned that “[f]ailure to respond to the Court’s Order will 12 result in the dismissal of the action.” Id. (emphasis in original). 13 On November 14, 2023, this Court issued a second OSC ordering Plaintiff to 14 respond to the Court’s previous Orders. Dkt. 14. Plaintiff was warned that he “must 15 comply . . . by November 27, 2023, or this action will be dismissed for failure to 16 prosecute.” Id. (emphasis in original). Plaintiff has not corresponded with the Court 17 at all since August 3, 2023. Dkt. 10. 18 III. 19 DISCUSSION 20 A. APPLICABLE LAW 21 District courts have sua sponte authority to dismiss actions for failure to 22 prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. Wabash 23 R.R. Co., 370 U.S. 626 , 629–30 (1962); Hells Canyon Pres. Council v. U.S. Forest 24 Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating courts may dismiss an action under 25 Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute 26 or comply with the Federal Rules of Civil Procedure or the court’s orders); Ferdik v. 27 Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (ordering dismissal for failure to 1 In deciding whether to dismiss for failure to prosecute or comply with court 2 orders, a district court must consider five (5) factors: “(1) the public’s interest in 3 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 4 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases 5 on their merits; and (5) the availability of less drastic sanctions.” Omstead v. Dell, 6 Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson v. Duncan, 779 F.2d 7 1421, 1423 (9th Cir. 1986)). 8 “[The Ninth Circuit] ‘may affirm dismissal where at least four factors support 9 dismissal . . . or where at least three factors “strongly” support dismissal.’” Yourish v. 10 California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (quoting Hernandez v. City of 11 El Monte, 138 F.3d 393, 399 (9th Cir. 1998)). In a case involving sua sponte 12 dismissal, however, the fifth Henderson factor regarding the availability of less drastic 13 sanctions warrants special focus. Hernandez, 138 F.3d at 399 . 14 B. ANALYSIS 15 1. The public’s interest in expeditious resolution of litigation 16 In the instant action, the public’s interest in expeditious resolution of litigation 17 weighs in favor of dismissal. See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 18 2002) (“The public’s interest in expeditious resolution of litigation always favors 19 dismissal.” (quoting Yourish, above) (internal quotation omitted)). Plaintiff has not 20 filed a FAC in compliance with the Court’s August 28, 2023 ODLA or otherwise 21 responded to the Court’s OSCs. In fact, Plaintiff has not corresponded with the 22 Court at all since August 3, 2023. Dkt. 10. Given that Plaintiff has failed to interact 23 with the Court for over four (4) months, this factor weighs in favor of dismissal. See 24 id.; see also Pagtalunan, 291 F.3d at 642 (finding that the plaintiff’s failure to pursue 25 the case for almost four (4) months weighed in favor of dismissal). 26 2. The Court’s need to manage its docket 27 The second factor—the Court’s need to manage its docket—likewise weighs in 1 subject to the endless vexatious noncompliance of litigants.” See Ferdik, 963 F.2d at 2 1261. As such, the second factor looks to whether a particular case has “consumed 3 . . . time that could have been devoted to other cases on the [Court’s] docket.” See 4 Pagtalunan, 291 F.3d at 642 ; Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th 5 Cir. 2004) (“[R]esources continue to be consumed by a case sitting idly on the court’s 6 docket.”). 7 On August 28, 2023, the Court issued an ODLA ordering Plaintiff to file a 8 FAC by September 18, 2023. Dkt. 12 at 1, 17. The ODLA cautioned Plaintiff that 9 failure to timely file a response to the ODLA “will result” in the dismissal of the 10 Complaint for failure to prosecute. Id. at 18. 11 On October 12, 2023, this Court issued an OSC giving Plaintiff until 12 November 3, 2023, to show why this action should not be dismissed for failure to 13 prosecute. Dkt. 13. Plaintiff was again warned that, “[f]ailure to respond to the 14 Court’s Order will result in the dismissal of the action.” Id. (emphasis added). 15 On November 14, 2023, the Court issued a Second OSC, ordering him to 16 comply within fourteen (14) days. Dkt. 14. The Court again warned that failure to 17 respond “will” result in the dismissal of the action. Id. 18 Plaintiff has failed to comply with any of the Court’s Orders, all of which 19 warned Plaintiff that his failure to comply could or would result in the recommended 20 dismissal of the Complaint. See Dkts. 12, 13, 14. Plaintiff’s failure to prosecute and 21 follow Court Orders hinders the Court’s ability to move this case toward disposition 22 and suggests Plaintiff does not intend to or cannot litigate this action diligently. 23 Consequently, the Court’s need to manage its docket favors dismissal here. 24 3. The risk of prejudice to Defendant 25 The third factor—prejudice to Defendant(s)—also weighs in favor of dismissal. 26 A rebuttable presumption of prejudice to defendant arises when plaintiffs 27 unreasonably delay prosecution of an action. See In re Eisen, 31 F.3d 1447 , 1452–53 1 (9th Cir. 1994) (“[T]he failure to prosecute diligently is sufficient by itself to justify 2 dismissal . . . [t]he law presumes injury from unreasonable delay.”). 3 Nothing suggests such a presumption is unwarranted in this case. Plaintiff has 4 not provided any reason for his failure to comply with either the Court’s ODLA or 5 OSCs and for his failure to communicate with the Court since August 3, 2023. Given 6 the length of the delay, the Court finds Plaintiff’s delay in prosecuting this case to be 7 unreasonable. Thus, prejudice is presumed and weighs in favor of dismissal. See, e.g., 8 In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 1217, 1227 (9th Cir. 9 2006) (“The law . . . presumes prejudice from unreasonable delay.”). 10 4. Public policy favoring disposition on the merits 11 The fourth factor—public policy in favor of deciding cases on the merits— 12 ordinarily weighs against dismissal. See In re Phenylpropanolamine (PPA) Prod. Liab. 13 Litig., 460 F.3d at 1228. Here, as it usually does, the fourth factor weighs against 14 dismissal. It is, however, Plaintiff’s responsibility to move towards disposition at a 15 reasonable pace and avoid dilatory and evasive tactics. See Morris v. Morgan Stanley, [16] 942 F.2d 648, 652 (9th Cir. 1991). Plaintiff has not discharged this responsibility 17 despite having been: (1) instructed on his responsibilities; (2) granted sufficient time in 18 which to discharge them; and (3) warned of the consequences of failure to do so. See 19 Dkts. 12, 13, 14. Under these circumstances, and without any other information from 20 Plaintiff, the policy favoring resolution of disputes on the merits does not outweigh 21 Plaintiff’s failure to obey Court Orders or to file responsive documents within the 22 time granted. 23 5. Availability of less drastic alternatives 24 The fifth factor—availability of less drastic sanctions—also weighs in favor of 25 dismissal. A “district court need not exhaust every sanction short of dismissal before 26 finally dismissing a case, but must explore possible and meaningful alternatives.” 27 Henderson, 779 F.2d at 1424 . Less drastic alternatives to dismissal include warning a 1 | United States Postal Service, 833 F.2d 128 , 132 n.1 Oth Cir. 1987). Further, “a district 2 | court’s warning to a party that his [or her] failure to obey the court’s order will result 3 | in dismissal can satisfy the “consideration of alternatives’ requirement.” Ferdik, 963 4 | F.2d at 1262 (citations omitted). 5 Here, the Court cannot move the case toward disposition without Plaintiffs 6 | compliance with Court Orders or participation in this litigation. Plaintiff has shown 7 | he is either unwilling or unable to comply with Court Orders by filing responsive 8 | documents or otherwise cooperating in prosecuting this action. Given this record, the 9 | Court finds that any less drastic alternatives to dismissal would be inadequate to 10 | remedy Plaintiffs failures to obey Court Orders and to prosecute. 11 6. Summaty 12 Finally, while dismissal should not be entered unless Plaintiff has been notified 13 | dismissal is imminent, see W. Coast Theater Corp. v. City of Portland, 897 F.2d 1519 , 14 | 1523 Oth Cir. 1990), the Court has warned Plaintiff about the potential dismissal in 15 | the August 28, 2023 ODLA and in two (2) separate OSCs. See Dkts. 12, 13, 14. 16 As discussed above, four (4) of the Rule 41(b) factors weigh in favor of 17 | dismissal. Accordingly, this action is subject to dismissal. 18 IV. 19 ORDER 20 IT IS THEREFORE ORDERED THAT Petitionet’s case is DISMISSED 21 | without prejudice. 22 | Dated: December 7, 2023 A Qacrgnas 24 NOBABLE R. GARY KLAUSNER 95 United States District Judge Presented by: [26] {PB 28 Matted States Magisteate Judge