Case 2:21-cv-08310-JFW-PD Document 11 Filed 05/10/22 Page 1 of 5 Page ID #:69
1 2 3 4 5 6 7 10 11 CATHERINE ALCANTARA, Case No. 2:21-cv-08310-JFW-PD
12 Plaintiff, ORDER DISMISSING ACTION 13 v. FOR FAILURE TO PROSECUTE 14 LOS ANGELES POLICE 16 Defendant.
18 I. Pertinent Procedural History and Plaintiff’s Claims 19 On October 20, 2021, Plaintiff Catherine Alcantara, a California 20 resident proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. 21 § 1983 (the “Complaint”) alleging that Defendant Los Angeles Police 22 Department (“LAPD”) had been stalking and harassing her since Spring 2018. 23 Plaintiff also filed a Request to Proceed Without Prepayment of Filing Fee 24 (“IFP Request”). [Dkt. Nos. 1, 2.] 25 On November 16, 2021, the Court dismissed the Complaint with leave 26 to amend after screening it pursuant to 28 U.S.C. § 1915 and finding that 27 none of its claims was actionable under section 1983. The Court also found 28 that Plaintiff did not fully complete the IFP Request and denied it with leave Case 2:21-cv-08310-JFW-PD Document 11 Filed 05/10/22 Page 2 of 5 Page ID #:70
1 to amend. The Court’s Order informed Plaintiff that if she wished to proceed 2 without pre-paying the filing fees, she had to submit another request. The 3 Order granted Plaintiff until December 15, 2021, to file an amended 4 complaint and a fully completed IFP Request. [Dkt. No. 5.] 5 On December 17, 2021, the Court issued an Order to Show Cause (the 6 “First OSC”) after Plaintiff failed to file an amended complaint and IFP 7 Request. The First OSC ordered Plaintiff to file either: (1) a request setting 8 forth good cause for an extension of time; or (2) an amended complaint and a 9 new, fully completed IFP Request. The First OSC warned Plaintiff that 10 failure to comply by January 14, 2022, may result in dismissal for failure to 11 prosecute. [Dkt. No. 6.] 12 On January 26, 2022, Plaintiff filed a document that re-stated the 13 allegations of the Complaint but failed to indicate which of her constitutional 14 rights were allegedly violated. [Dkt. No. 7.] Further, the document requested criminal prosecution of LAPD officers, which may not be done through a civil 15 rights complaint. [Id.] Plaintiff also filed a signed Certificate of Interested 16 Parties (CV-30) but failed to list any parties. [Dkt. No. 8.] The Court did not 17 accept the document containing the re-stated allegations as the First 18 Amended Complaint because the document did not comply with the 19 requirements set forth in the November 16, 2021 Order or the First OSC. 20 On February 4, 2022, the Court issued the Second OSC, which granted 21 Plaintiff another opportunity to comply with the First OSC and restated the 22 requirements that Plaintiff must follow to file an amended complaint and an 23 IFP request. The Second OSC ordered Plaintiff to file a response by March 24 10, 2022 and reminded Plaintiff that she must pay the filing fee or file a 25 completed IFP Request in order to proceed with this action. [Dkt. No. 9.] 26 Plaintiff failed to file a response to the Second OSC. On March 24, 27 2022, the Court issued the Third OSC granting Plaintiff one final 28
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1 2 opportunity to file an amended complaint and IFP Request by April 14, 2022. 3 [Dkt. No. 10.] The Third OSC warned Plaintiff that her failure to comply with 4 it would result in a recommendation of dismissal pursuant to Fed. R. Civ. P. 5 41(b) and Local Rule 41-1. Plaintiff failed to comply with the Second or Third 6 OSC and has not otherwise communicated with the Court about her case. 7 Accordingly, the case is now subject to dismissal for Plaintiff’s failure to 8 prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and 9 Local Rule 41-1. 10 II. Discussion 11 Rule 41(b) grants district courts the authority to sua sponte dismiss 12 actions for failure to prosecute. Link v. Wabash R.R. Co., 370 U.S. 626, 629- 13 30 (1962). In determining whether dismissal for lack of prosecution is 14 warranted, a court must weigh several factors, including: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage 15 its docket; (3) the risk of prejudice to defendants; (4) the availability of less 16 drastic sanctions; and (5) the public policy favoring the disposition of cases on 17 their merits. Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002); Ferdik 18 v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992). Dismissal is appropriate 19 under the foregoing analysis “where at least four factors support dismissal ... 20 or where at least three factors ‘strongly’ support dismissal.” Hernandez v. 21 City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citations omitted). 22 In this case, the first two factors – public interest in expeditious 23 resolution of litigation and the need to manage the Court’s docket – weigh in 24 favor of dismissal. Plaintiff has not filed an amended complaint or a fully 25 completed IFP Request. Plaintiff’s failure to file an amended complaint and 26 IFP Request or show good cause for her delay prevents the Court from moving 27 28
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1 this case toward disposition and shows that Plaintiff does not intend to 2 litigate this action diligently. 3 Arguably, the third factor – prejudice to Defendant – does not counsel in 4 favor of dismissal because Defendant has not been served and may otherwise 5 be unaware that a case has been filed. However, the Ninth Circuit has held 6 that prejudice may be presumed from unreasonable delay. See In re Eisen, 31 7 F.3d 1447, 1452-53 (9th Cir. 1994); Moore v. Teflon Commc’ns. Corp., 589 F.2d 8 959, 967-68 (9th Cir. 1978). Plaintiff’s inaction in this matter is an 9 unreasonable delay. In the absence of any explanation, non-frivolous or 10 otherwise, for Plaintiff’s delay, the Court presumes prejudice. See Laurino v. 11 Syringa Gen. Hosp., 279 F.3d 750, 753 (9th Cir. 2002) (presumption of 12 prejudice can be rebutted by a non-frivolous explanation); Pagtalunan, 291 13 F.3d at 642 (citing Yourish v. California Amplifier, 191 F.3d 983, 991 (9th Cir. 14 1999)). The fourth factor – the availability of less drastic sanctions – ordinarily 15 counsels against dismissal. However, the Court attempted to avoid outright 16 dismissal by giving Plaintiff ample time and several opportunities to 17 communicate with the Court and file an amended complaint and IFP Request. 18 Plaintiff was also expressly warned that failure to comply with the Court’s 19 orders could result in dismissal. [See Dkt. Nos. 6, 9-10.] Thus, the Court 20 explored the only meaningful alternatives to dismissal in its arsenal and 21 found that they were not effective. See Henderson v. Duncan, 779 F.2d 1421, 22 1424 (9th Cir.
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Case 2:21-cv-08310-JFW-PD Document 11 Filed 05/10/22 Page 1 of 5 Page ID #:69
1 2 3 4 5 6 7 10 11 CATHERINE ALCANTARA, Case No. 2:21-cv-08310-JFW-PD
12 Plaintiff, ORDER DISMISSING ACTION 13 v. FOR FAILURE TO PROSECUTE 14 LOS ANGELES POLICE 16 Defendant.
18 I. Pertinent Procedural History and Plaintiff’s Claims 19 On October 20, 2021, Plaintiff Catherine Alcantara, a California 20 resident proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. 21 § 1983 (the “Complaint”) alleging that Defendant Los Angeles Police 22 Department (“LAPD”) had been stalking and harassing her since Spring 2018. 23 Plaintiff also filed a Request to Proceed Without Prepayment of Filing Fee 24 (“IFP Request”). [Dkt. Nos. 1, 2.] 25 On November 16, 2021, the Court dismissed the Complaint with leave 26 to amend after screening it pursuant to 28 U.S.C. § 1915 and finding that 27 none of its claims was actionable under section 1983. The Court also found 28 that Plaintiff did not fully complete the IFP Request and denied it with leave Case 2:21-cv-08310-JFW-PD Document 11 Filed 05/10/22 Page 2 of 5 Page ID #:70
1 to amend. The Court’s Order informed Plaintiff that if she wished to proceed 2 without pre-paying the filing fees, she had to submit another request. The 3 Order granted Plaintiff until December 15, 2021, to file an amended 4 complaint and a fully completed IFP Request. [Dkt. No. 5.] 5 On December 17, 2021, the Court issued an Order to Show Cause (the 6 “First OSC”) after Plaintiff failed to file an amended complaint and IFP 7 Request. The First OSC ordered Plaintiff to file either: (1) a request setting 8 forth good cause for an extension of time; or (2) an amended complaint and a 9 new, fully completed IFP Request. The First OSC warned Plaintiff that 10 failure to comply by January 14, 2022, may result in dismissal for failure to 11 prosecute. [Dkt. No. 6.] 12 On January 26, 2022, Plaintiff filed a document that re-stated the 13 allegations of the Complaint but failed to indicate which of her constitutional 14 rights were allegedly violated. [Dkt. No. 7.] Further, the document requested criminal prosecution of LAPD officers, which may not be done through a civil 15 rights complaint. [Id.] Plaintiff also filed a signed Certificate of Interested 16 Parties (CV-30) but failed to list any parties. [Dkt. No. 8.] The Court did not 17 accept the document containing the re-stated allegations as the First 18 Amended Complaint because the document did not comply with the 19 requirements set forth in the November 16, 2021 Order or the First OSC. 20 On February 4, 2022, the Court issued the Second OSC, which granted 21 Plaintiff another opportunity to comply with the First OSC and restated the 22 requirements that Plaintiff must follow to file an amended complaint and an 23 IFP request. The Second OSC ordered Plaintiff to file a response by March 24 10, 2022 and reminded Plaintiff that she must pay the filing fee or file a 25 completed IFP Request in order to proceed with this action. [Dkt. No. 9.] 26 Plaintiff failed to file a response to the Second OSC. On March 24, 27 2022, the Court issued the Third OSC granting Plaintiff one final 28
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1 2 opportunity to file an amended complaint and IFP Request by April 14, 2022. 3 [Dkt. No. 10.] The Third OSC warned Plaintiff that her failure to comply with 4 it would result in a recommendation of dismissal pursuant to Fed. R. Civ. P. 5 41(b) and Local Rule 41-1. Plaintiff failed to comply with the Second or Third 6 OSC and has not otherwise communicated with the Court about her case. 7 Accordingly, the case is now subject to dismissal for Plaintiff’s failure to 8 prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and 9 Local Rule 41-1. 10 II. Discussion 11 Rule 41(b) grants district courts the authority to sua sponte dismiss 12 actions for failure to prosecute. Link v. Wabash R.R. Co., 370 U.S. 626, 629- 13 30 (1962). In determining whether dismissal for lack of prosecution is 14 warranted, a court must weigh several factors, including: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage 15 its docket; (3) the risk of prejudice to defendants; (4) the availability of less 16 drastic sanctions; and (5) the public policy favoring the disposition of cases on 17 their merits. Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002); Ferdik 18 v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992). Dismissal is appropriate 19 under the foregoing analysis “where at least four factors support dismissal ... 20 or where at least three factors ‘strongly’ support dismissal.” Hernandez v. 21 City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citations omitted). 22 In this case, the first two factors – public interest in expeditious 23 resolution of litigation and the need to manage the Court’s docket – weigh in 24 favor of dismissal. Plaintiff has not filed an amended complaint or a fully 25 completed IFP Request. Plaintiff’s failure to file an amended complaint and 26 IFP Request or show good cause for her delay prevents the Court from moving 27 28
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1 this case toward disposition and shows that Plaintiff does not intend to 2 litigate this action diligently. 3 Arguably, the third factor – prejudice to Defendant – does not counsel in 4 favor of dismissal because Defendant has not been served and may otherwise 5 be unaware that a case has been filed. However, the Ninth Circuit has held 6 that prejudice may be presumed from unreasonable delay. See In re Eisen, 31 7 F.3d 1447, 1452-53 (9th Cir. 1994); Moore v. Teflon Commc’ns. Corp., 589 F.2d 8 959, 967-68 (9th Cir. 1978). Plaintiff’s inaction in this matter is an 9 unreasonable delay. In the absence of any explanation, non-frivolous or 10 otherwise, for Plaintiff’s delay, the Court presumes prejudice. See Laurino v. 11 Syringa Gen. Hosp., 279 F.3d 750, 753 (9th Cir. 2002) (presumption of 12 prejudice can be rebutted by a non-frivolous explanation); Pagtalunan, 291 13 F.3d at 642 (citing Yourish v. California Amplifier, 191 F.3d 983, 991 (9th Cir. 14 1999)). The fourth factor – the availability of less drastic sanctions – ordinarily 15 counsels against dismissal. However, the Court attempted to avoid outright 16 dismissal by giving Plaintiff ample time and several opportunities to 17 communicate with the Court and file an amended complaint and IFP Request. 18 Plaintiff was also expressly warned that failure to comply with the Court’s 19 orders could result in dismissal. [See Dkt. Nos. 6, 9-10.] Thus, the Court 20 explored the only meaningful alternatives to dismissal in its arsenal and 21 found that they were not effective. See Henderson v. Duncan, 779 F.2d 1421, 22 1424 (9th Cir. 1986) (“The district court need not exhaust every sanction short 23 of dismissal before finally dismissing a case, but must explore possible and 24 meaningful alternatives.”) (citation omitted). 25 The fifth factor – the general policy favoring resolution on the merits – 26 ordinarily weighs against dismissal. Pagtalunan, 291 F.3d at 643. It is, 27 however, the responsibility of the moving party to move the case toward 28
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1 || disposition on the merits at a reasonable pace and to refrain from dilatory and 2 || evasive tactics. Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 3 || 1991). Because Plaintiff has failed to participate in her own lawsuit, it does 4 || not appear that retention of this case would increase the likelihood of the 5 || matter being resolved on its merits. This factor does not weigh in favor of or 6 || against dismissal. 7 In sum, four of the five factors support dismissal, and the Court 8 || concludes that dismissal for failure to prosecute is warranted. This matter is 9 || hereby dismissed for failure to prosecute. 10 11 | SO ORDERED. 12 13 || Dated: May 10, 2022 "4 La Ot tL 15 eraraile John F. Walter 6 ted States District Judge 17 18 19 || Presented by: "| Ata Donohoe Honorable Patricia Donahue 22 || United States Magistrate Judge 23 24 25 26 27 28