Roberto Castro-Verdugo v. Ralph Diaz

[7] UNITED STATES DISTRICT COURT [8] CENTRAL DISTRICT OF CALIFORNIA [10] ROBERTO CASTRO-VERDUGO, Case No. 5:20-cv-02260-MCS (SHK) [11] 12 Plaintiff, v. 13 ORDER DISMISSING CASE 14 RALPH DIAZ, et al., [15] Defendants. [17] 18 For the following reasons, this case is DISMISSED without prejudice. 19 I. BACKGROUND 20 On October 22, 2020, Plaintiff Roberto Castro-Verdugo (“Plaintiff”), 21 proceeding pro per and in forma pauperis, filed a complaint under 42 U.S.C. § 1983 22 alleging various violations of his constitutional rights (“Complaint”). Electronic 23 Case Filing Number (“ECF No.”) 1, Compl. After screening the Complaint under 24 28 U.S.C. § 1915A, on February 8, 2021, the Court issued an Order Dismissing 25 Most of The Claims in The Complaint with Leave to Amend (“ODLA”). ECF No. 26 11, ODLA. Plaintiff had 21 days from the ODLA, which was March 1, 2021, to file 27 his First Amended Complaint (“FAC”). Id. Plaintiff was warned that if Plaintiff 1 or without prejudice for failure to state a claim, failure to prosecute, and/or 2 failure to obey Court orders under Federal Rule of Civil Procedure 41(b).” Id. 3 at 27-28 (emphasis in original). 4 On March 1, 2021, the Court received Plaintiff’s Objections to Non5 Dispositive Order of Magistrate Judge (“Objections”), which appears to be an 6 objection to the ODLA. ECF No. 13, Objs. After reviewing Plaintiff’s Objections, 7 however, the Court concluded that its ODLA was appropriate. In response, the 8 Court issued a minute order (“Order”) requiring Plaintiff, by June 7, 2021, to either: 9 “(1) file a[] FAC that includes all claims that Plaintiff would like to pursue, even if 10 Plaintiff previously stated them in the original Complaint, including claims which 11 the Court did not find deficient; or (2) clearly indicate to the Court, in writing, that 12 Plaintiff intends to proceed with the entire current Complaint, as is.” ECF No. 16, 13 Order at 2 (emphasis in original). Having received no response from Plaintiff by 14 September 10, 2021, the Court issued an Order to Show Cause (“OSC”) requiring 15 Plaintiff to state why this case should not be dismissed for failure to prosecute or 16 follow Court orders, by September 23, 2021. ECF No. 21, OSC. Plaintiff was 17 warned “for the final time that if Plaintiff does not timely file an FAC or clearly 18 notify the Court on whether Plaintiff chooses to proceed on his originally filed 19 Complaint, the Court will recommend that this action be dismissed . . . .” Id. 20 (emphasis in the original). As of the date this order, Plaintiff has failed to timely 21 respond to the Court’s ODLA, Order, or OSC or to otherwise participate in this 22 litigation. 23 II. LEGAL STANDARD 24 District courts have sua sponte authority to dismiss actions for failure to 25 prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. Wabash 26 R.R. Co., 370 U.S. 626, 629-30 (1962); Hells Canyon Pres. Council v. U.S. Forest 27 Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating courts may dismiss an action under 1 or comply with the Federal Rules of Civil Procedure or the court’s orders); Ferdik v. 2 Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (ordering dismissal for failure to 3 comply with court orders). 4 In deciding whether to dismiss for failure to prosecute or comply with court 5 orders, a district court must consider five factors: “(1) the public’s interest in 6 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 7 risk of prejudice to the defendants; (4) the public policy favoring disposition of 8 cases on their merits; and (5) the availability of less drastic sanctions.” Henderson 9 v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); see also Pagtalunan v. Galaza, 291 10 F.3d 639, 642 (9th Cir. 2002) (setting out five factors similar to those in Henderson). 11 “Dismissal is appropriate ‘where at least four factors support dismissal, or where at 12 least three factors ‘strongly’ support dismissal.’” Neal v. Reslan, No. CV 19-09291 13 PA (ASx), 2020 WL 754366 , at *1 (C.D. Cal. Jan. 16, 2020) (quoting Hernandez v. 14 City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (internal citations omitted) 15 (citing Ferdik, 963 F.2d at 1263 )). In a case involving sua sponte dismissal, 16 however, the fifth Henderson factor regarding the availability of less drastic 17 sanctions warrants special focus. Hernandez, 138 F.3d at 399 . 18 III. DISCUSSION 19 Here, the first two factors—public interest in expeditious resolution of 20 litigation and the Court’s need to manage its docket—weigh in favor of dismissal. 21 Despite being instructed that most of the claims in the case were subject to dismissal 22 and subsequently being warned that failure to respond to the OSC could result in 23 dismissal of this case with prejudice for failure to prosecute and follow Court orders, 24 Plaintiff has failed to do so or otherwise participate in this litigation. This failure to 25 prosecute and follow Court orders hinders the Court’s ability to move this case 26 toward disposition and suggests that Plaintiff does not intend to litigate this action 27 diligently. 1 The third factor—prejudice to defendants—also weighs in favor of dismissal. 2 A rebuttable presumption of prejudice to a defendant arises when a plaintiff 3 unreasonably delays prosecuting an action. See In re Eisen, 31 F.3d 1447 , 1452-53 4 (9th Cir. 1994) (citations omitted). The record suggests such a presumption is 5 warranted in this case, considering that Plaintiff has failed to comply with the 6 Court’s OSC and Plaintiff has not offered any excuse for his failure to comply with 7 the OSC and respond in a timely manner. Thus, this “prejudice” element favors 8 dismissal. 9 The fourth factor—public policy in favor of deciding cases on the merits— 10 ordinarily weighs against dismissal. However, it is Plaintiff’s responsibility to move 11 litigation towards disposition at a reasonable pace and to avoid dilatory and evasive 12 tactics. See Morris v. Morgan Stanley, 942 F.2d 648, 652 (9th Cir. 1991). Plaintiff 13 has not met this responsibility despite having been: (1) instructed on his 14 responsibilities; (2) granted sufficient time in which to discharge them; and 15 (3) warned of the consequences of failure to do so. Under these circumstances, 16 though this policy favors Plaintiff, it does not outweigh Plaintiff’s repeated failure to 17 obey Court orders or to file responsive documents within the time granted. 18 The fifth factor—availability of less drastic sanctions—also weighs in favor 19 of dismissal. The Court cannot move the case toward disposition without Plaintiff’s 20 compliance with Court orders or participation in this litigation. Despite the Court’s 21 attempt to obtain a response, Plaintiff has shown he is either unwilling or unable to 22 comply with Court orders by failing to file responsive documents and failing to 23 otherwise cooperate in prosecuting this action. The Court is not aware of any lesser 24 sanction that is available in this case. See Henderson, 779 F.2d at 1424 (“The 25 district court need not exhaust every sanction short of dismissal before finally 26 dismissing a case but must explore possible and meaningful alternatives.”) (citation 27 omitted); Roman v. Smith, No. 2:18-07909 PA (ADS), 2019 WL 8013120 , at *1 1 Accordingly, the Court finds that dismissal of this action, without prejudice, 2 | is appropriate here. 3 IV. CONCLUSION 4 For the reasons discussed previously, IT IS HEREBY ORDERED that the 5 | case is DISMISSED without prejudice. [6] Habel, fei g Dated: November 15, 2021 HON MR ea 9 United States District Judge [10] 11 | Presented by: [12] 13 Wes 14 | HON. SHASHIH.KEWALRAMANI 15 United States Magistrate Judge