Andrew S. Kindle v. L.A.P.D Newton Division

Opinion

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7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ANDREW S. KINDLE, Case No. 2:21-cv-06252-RGK-SHK

12 Plaintiff, 13 v. ORDER DISMISSING CASE 14 L.A.P.D. NEWTON DIVISION, 15 Defendant. 16

17 18 For the following reasons, this case is DISMISSED without prejudice. 19 I. BACKGROUND 20 On August 3, 2021, Plaintiff Andrew Kindle (“Plaintiff”), proceeding pro se 21 and in forma pauperis (“IFP”), filed a complaint (“Complaint” or “Compl.”) against 22 L.A.P.D. Newton Division (“LAPD” or “Defendant”) alleging violations of 23 Plaintiff’s Fourth, Fifth, and Fourteenth Amendment rights and Title VI of the Civil 24 Rights Act of 1964. Electronic Case Filing Number (“ECF No.”) 1, Compl. On 25 August 13, 2021, the Court issued an Order Dismissing the Complaint with Leave to 26 Amend (“ODLA”). ECF No. 6, ODLA. In the ODLA, Plaintiff was ordered to file 27 a First Amended Complaint (“FAC”) by September 3, 2021 if Plaintiff wished to 1 Plaintiff failed to timely file a FAC as ordered in the ODLA. On September 2 15, 2021, Plaintiff was ordered to show cause (“OSC”), by September 29, 2021, 3 why the case should not be dismissed for failure to prosecute and follow Court 4 orders. ECF No. 7, OSC. Plaintiff was warned in the OSC that the Court “will 5 deem” failure to timely respond to the OSC as “a further violation of a Court order 6 justifying dismissal, and [will] also deem such a failure as further evidence of a lack 7 of prosecution on Plaintiff’s part.” Id. at 1 (emphasis in original). As of the date of 8 this Order, Plaintiff has failed to file a FAC, respond to the Court’s OSC, or 9 otherwise participate in this litigation. 10 II. LEGAL STANDARD 11 District courts have sua sponte authority to dismiss actions for failure to 12 prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. Wabash 13 R.R. Co., 370 U.S. 626, 629-30 (1962); Hells Canyon Pres. Council v. U.S. Forest 14 Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating courts may dismiss an action under 15 Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute 16 or comply with the Federal Rules of Civil Procedure or the court’s orders); Ferdik v. 17 Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (ordering dismissal for failure to 18 comply with court orders). 19 In deciding whether to dismiss for failure to prosecute or comply with court 20 orders, a district court must consider five factors: “(1) the public’s interest in 21 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 22 risk of prejudice to the defendants; (4) the public policy favoring disposition of 23 cases on their merits; and (5) the availability of less drastic sanctions.” Henderson 24 v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); see also Pagtalunan v. Galaza, 291 25 F.3d 639, 642 (9th Cir. 2002) (setting out five factors similar to those in Henderson). 26 “Dismissal is appropriate ‘where at least four factors support dismissal, or where at 27 least three factors ‘strongly’ support dismissal.’” Neal v. Reslan, No. CV 19-09291 1 City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (internal citations omitted) 2 (citing Ferdik, 963 F.2d at 1263)). In a case involving sua sponte dismissal, 3 however, the fifth Henderson factor regarding the availability of less drastic 4 sanctions warrants special focus. Hernandez, 138 F.3d at 399. 5 III. DISCUSSION 6 Here, the first two factors—public interest in expeditious resolution of 7 litigation and the Court’s need to manage its docket—weigh in favor of dismissal. 8 Despite being warned that failure to respond to the OSC will be deemed further 9 evidence of a lack of prosecution and a further violation of a Court order justifying 10 dismissal, Plaintiff has failed to do so. Plaintiff’s failure to prosecute and follow 11 Court orders hinders the Court’s ability to move this case toward disposition and 12 suggests that Plaintiff does not intend to litigate this action diligently. 13 The third factor—prejudice to Defendant—also weighs in favor of dismissal. 14 A rebuttable presumption of prejudice to a defendant arises when a plaintiff 15 unreasonably delays prosecuting an action. See In re Eisen, 31 F.3d 1447, 1452-53 16 (9th Cir. 1994) (citations omitted). Nothing suggests such a presumption is 17 unwarranted in this case, considering that Plaintiff has failed to comply with the 18 Court’s OSC and Plaintiff has not offered any excuse for his failure to comply with 19 the OSC and respond in a timely manner. Thus, this “prejudice” element thus favors 20 dismissal. 21 The fourth factor—public policy in favor of deciding cases on the merits— 22 ordinarily weighs against dismissal. However, it is Plaintiff’s responsibility to move 23 litigation towards disposition at a reasonable pace and to avoid dilatory and evasive 24 tactics. See Morris v. Morgan Stanley, 942 F.2d 648, 652 (9th Cir. 1991). Plaintiff 25 has not met this responsibility despite having been: (1) instructed on his 26 responsibilities; (2) granted sufficient time in which to discharge them; and 27 (3) warned of the consequences of failure to do so. Under these circumstances, 1 | though this policy favors Plaintiff, it does not outweigh Plaintiff's repeated failure to 2 | obey Court orders or to file responsive documents within the time granted. 3 The fifth factor—availability of less drastic sanctions—also weighs in favor 4 | of dismissal. The Court cannot move the case toward disposition without □□□□□□□□□□ 5 | compliance with Court orders or participation in this litigation. Despite the Court’s 6 | attempt to obtain a response, Plaintiff has shown he is either unwilling or unable to 7 | comply with Court orders by failing to file responsive documents and failing to 8 | otherwise cooperate in prosecuting this action. The Court is not aware of any lesser 9 | sanction that is available in this case. See Henderson, 779 F.2d at 1424 (“The 10 | district court need not exhaust every sanction short of dismissal before finally 11 | dismissing a case but must explore possible and meaningful alternatives.”’) (citation 12 | omitted); Roman v. Smith, No. 2:18-07909 PA (ADS), 2019 WL 8013120, at *1 13 | (C.D. Cal. Nov. 18, 2019). 14 Accordingly, the Court finds that dismissal of this action, without prejudice, 15 | 1s appropriate here. 16 IV. CONCLUSION 17 For the reasons discussed above, IT IS HEREBY ORDERED that the case 18 | is DISMISSED without prejudice. 19 20 d oceans Dated: November 19, 2021 oe oe ee United States District Judge 23 | Presented by: 24 25 WW 26 | HONORABLE SHASHI H. KEWALRAMANI | 57 United States Magistrate Judge 28