Jonathan L. Mackson v. C. A. Hinton

[7] 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA [10] ) 11 JONATHAN L. MACKSON, ) Case No. CV 20-4633-JLS (JPR) ) 12 Plaintiff, ) ORDER DISMISSING ACTION WITHOUT 13 v. ) PREJUDICE FOR FAILURE TO ) PROSECUTE AND FAILURE TO STATE 14 HINTON et al., ) CLAIM ) 15 Defendants. ) ) [16] 17 On May 22, 2020, Plaintiff filed this civil-rights action 18 pro se. On July 22, 2020, the Magistrate Judge dismissed the 19 Complaint for failure to state a claim but with leave to amend, 20 warning Plaintiff in bold letters that if he failed to file a 21 timely amended complaint the Court “may dismiss” his lawsuit for 22 the reasons stated in the order and for failure to prosecute. 23 Plaintiff’s amended complaint was due August 19, 2020. 24 When he didn’t file one or request an extension of time, on 25 September 18, 2020, the Magistrate Judge directed the Clerk to 26 re-serve the July 22 dismissal order on him at the address 27 listed for him on the Los Angeles County Sheriff Department’s 28 inmate-locator website even though the dismissal order had not 1 been returned as undeliverable. The Magistrate Judge reminded 2 Plaintiff that he must immediately file a notice of change of 3 address upon being transferred to a different facility or 4 acquiring a new mailing address and that if he failed to do so 5 his lawsuit would be subject to dismissal on that basis alone. 6 Plaintiff has not responded to the September 18 order, which 7 also wasn’t returned as undeliverable, and he still hasn’t filed 8 an amended complaint or requested an extension of time. 9 Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988) (per 10 curiam), examined when it is appropriate to dismiss a 11 plaintiff’s lawsuit for failure to prosecute. See also Link v. 12 Wabash R.R., 370 U.S. 626 , 629–30 (1962) (“The power to invoke 13 [dismissal] is necessary in order to prevent undue delays in the 14 disposition of pending cases and to avoid congestion in the 15 calendars of the District Courts.”). 16 In deciding whether to dismiss a lawsuit for failure to 17 prosecute, a court must consider “(1) the public’s interest in 18 expeditious resolution of litigation; (2) the court’s need to 19 manage its docket; (3) the risk of prejudice to the defendants; 20 (4) the public policy favoring disposition of cases on their 21 merits[;] and (5) the availability of less drastic sanctions.” 22 Carey, 856 F.2d at 1440 (citation omitted). Unreasonable delay 23 creates a rebuttable presumption of prejudice to the defendant 24 that can be overcome only with an affirmative showing of just 25 cause by the plaintiff. In re Eisen, 31 F.3d 1447, 1452-53 (9th 26 Cir. 1994). 27 Here, the first, second, third, and fifth Carey factors 28 militate in favor of dismissal. In particular, Plaintiff has 1 |joffered no explanation for his failure to file an amended 2 |}complaint and hasn’t communicated with the Court since shortly 3 |lafter filing the Complaint. Thus, he has not rebutted the 4 |ipresumption of prejudice to Defendants. No less drastic 5 |]/sanction is available, as the Complaint cannot be ordered served 6 ||because it fails to state a claim’ as a result, the Court is 7 |junable to manage its docket. See Baskett v. Quinn, 225 F. App’x 8 640 (9th Cir. 2007) (upholding dismissal of pro se civil9 |irights action for failure to state claim or timely file amended 10 |j}complaint). Although the fourth Carey factor weighs against 11 |/dismissal — as it always does — together the other factors 12 ||/outweigh the public’s interest in disposing of the case on its 13 ||merits. 14 Accordingly, this action is dismissed for failure to 15 ||/prosecute and failure to state a claim. [16] 17 de 18 llparrp: January 1, 2021 _ 19 JOSEPHINE L. STATON UNITED STATES DISTRICT JUDGE [20] Presented by: Paenllate~ 22 Jean P. Rosenbluth —— 23 ||U.S. Magistrate Judge