Brazee v. Imperial County Jail

• Court: District Court, S.D. California
• Decided: May 2, 2025
• Docket: 3:24-cv-00651
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GREGORY ALLEN BRAZEE, Case No.: 3:24-CV-00651-RBM-JLB ICJ #23-2740, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILING TO vs. STATE A CLAIM PURSUANT 14 TO 28 U.S.C. § 1915(e)(2)(B)(ii) IMPERIAL COUNTY JAIL; IMPERIAL 15 AND 28 U.S.C. § 1915A(b)(1) COUNTY JAIL STAFF; MEDICAL AND FOR FAILING TO 16 STAFF IN IMPERIAL COUNTY JAIL; PROSECUTE IN FRANCO, Nurse, 17 COMPLIANCE WITH Defendants. COURT ORDER 18 19 20 Plaintiff Gregory Allen Brazee, proceeding pro se while detained at the Imperial 21 County Jail (“ICJ”) in El Centro, filed this civil rights action pursuant to 42 U.S.C. § 1983 22 on April 5, 2024. (Doc. 1.) Brazee claimed the Imperial County Jail staff failed to properly 23 attend to his medical needs on several occasions between December 2023 and March 2024. 24 (Id. at 3.) Brazee did not pay the filing fee required by 28 U.S.C. § 1914(a), but instead 25 filed two separate motions to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. 26 § 1915(a). (Docs. 5, 6.) On July 19, 2024, the Court granted Brazee leave to proceed in 27 forma pauperis but dismissed his Complaint sua sponte for failure to state a claim pursuant 28 to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). (Doc. No. 7.) 1 The Court’s July 19, 2024 Order explained Brazee’s pleading deficiencies and gave 2 him until September 5, 2024 to file an Amended Complaint. (Id. at 6‒10.) The Court also 3 informed Brazee that if he failed to timely amend, it would enter a final judgment of 4 dismissal based on his failure to state a claim and his failure to prosecute in compliance 5 with the Court’s Order requiring amendment. (Id. at 11 (citing Lira v. Herrera, 427 F.3d 6 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix 7 his complaint, a district court may convert the dismissal of the complaint into dismissal of 8 the entire action.”).) 9 More than seven months have passed since Brazee’s Amended Complaint was due, 10 but he has neither filed one nor sought an extension of time in which to do so. This Court 11 has discretion to sua sponte dismiss a case for lack of prosecution or failure to comply with 12 a court order. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); see also Fed. 13 R. Civ. P. 41(b) (providing for involuntary dismissal for failure to prosecute or comply 14 with the federal rules or court order). “The failure of the plaintiff eventually to respond to 15 the court’s ultimatum—either by amending the complaint or by indicating to the court that 16 [he] will not do so—is properly met with the sanction of a Rule 41(b) dismissal.” Edwards 17 v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). 18 “In determining whether to dismiss a claim for failure to prosecute or failure to 19 comply with a court order, the Court must weigh the following factors: (1) the public’s 20 interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; 21 (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic 22 alternatives; and (5) the public policy favoring disposition of cases on their merits.” 23 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 24 F.2d 1258, 1260‒61 (9th Cir. 1992)). Because the Court has informed Brazee of his need 25 to timely amend but he has failed to do so, factors one, two, and four weigh in favor of 26 dismissal. See Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (“[T]he 27 public’s interest in expeditious resolution of litigation always favors dismissal.”); 28 Pagtalunan, 291 F.3d at 642 (“The trial judge is in the best position to determine whether | delay in a particular case interferes with docket management and the public interest.”); 2 || Nevijel v. N. Coast Life Ins. Co., 651 F.2d 671, 674 (9th Cir. 1981) (a court is not required 3 ||to exhaust all alternatives prior to dismissal). Factor five also does not weigh against 4 ||dismissal. See In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 1217, 1227 5 || (9th Cir. 2006) (the public policy favoring disposition on the merits does not weigh against 6 || dismissal where plaintiff's “conduct impedes progress in that direction.”) Finally, because 7 || Brazee has failed to file a pleading that survives initial screening, no party has yet to appear. 8 || Therefore, only factor three fails to support dismissal. See Pagtalunan, 291 F.3d at 642 9 (where defendants have not appeared, “[w]e have previously recognized that pendency of 10 |/a lawsuit is not sufficiently prejudicial in and of itself to warrant dismissal.”’). 11 Taken all together, the Court finds the weight of these factors favors dismissal. 12 || Therefore, entry of a final judgment is appropriate. See Hernandez v. City of El Monte, 13 F.3d 393, 399 (9th Cir. 1998) (“We may affirm a dismissal where at least four factors 14 || support dismissal, or where at least three factors ‘strongly’ support dismissal.”) (internal 15 citation omitted) (quoting Ferdik, 963 F.2d at 1263). 16 CONCLUSION AND ORDER 17 For the reasons set forth above, the Court DISMISSES this civil action without 18 || prejudice based on Plaintiffs failure to state a claim upon which relief may be granted 19 || pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(Qi) and 1915A(b)(1), and for failure to amend as 20 required by the Court’s July 19, 2024 Order. The Court further CERTIFIES that an in 21 || forma pauperis appeal would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3), 22 DIRECTS the Clerk of Court to enter a final judgment of dismissal and close the file. 23 IT IS SO ORDERED. 24 || Dated: May 1, 2025 Fe Le ; ? L □ 25 HON. RUTH BERMUDEZ MONTENEGRO 26 UNITED STATES DISTRICT JUDGE 27 28