Cavalier v. Aranda

Opinion

1 2 3 4 5 6 7 10 11 ROBERT THOMAS CAVALIER, Case No.: 24-cv-01275-AJB-JLB CDCR #E-98747, 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) A. ARANDA, et al, 15 AND 28 U.S.C. § 1915A(b)(1) Defendants. AND FOR FAILING TO 16 PROSECUTE IN COURT ORDERS 18 19 20 On June 24, 2024, Plaintiff Robert Thomas Cavalier, while incarcerated at Richard 21 J. Donovan Correctional Facility in San Diego, and proceeding pro se, filed this civil rights 22 action pursuant to 42 U.S.C. § 1983 in the Northern District of California, together with a 23 motion to proceed in forma pauperis (“IFP”). (See Doc. Nos. 1, 2.) The case was transferred 24 here for lack of proper venue, and on October 2, 2024, the Court granted Plaintiff leave to 25 proceed IFP, dismissed his complaint for failure to state a claim pursuant to 28 U.S.C. 26 §§ 1915(e)(2) and 1915A, and granted him leave to amend on or before November 18, 27 2024. (Doc. No. 9.) The Court informed Plaintiff that if he failed to timely amend, it would 28 enter a final judgment of dismissal based on his failures to state a claim and to prosecute 1 in compliance with the Court’s Order requiring amendment. (Id. at 11‒12 (citing Lira v. 2 Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of 3 the opportunity to fix his complaint, a district court may convert the dismissal of the 4 complaint into dismissal of the entire action.”)).) The Court has since granted multiple 5 motions seeking extensions of time to amend, giving Plaintiff an additional eight months, 6 or until July 12, 2025, to comply. (See Doc. Nos. 11, 14, 17.) Nearly a year has now elapsed 7 since Plaintiff’s complaint was first dismissed, and yet he has still failed to amend. 8 The Court may sua sponte dismiss a case for lack of prosecution or failure to comply 9 with a court order. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); see 10 also Fed. R. Civ. P. 41(b) (providing for involuntary dismissal for failure to prosecute or 11 comply with the federal rules or court order). “The failure of the plaintiff eventually to 12 respond to the court’s ultimatum—either by amending the complaint or by indicating to 13 the court that [he] will not do so—is properly met with the sanction of a Rule 41(b) 14 dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). “In determining 15 whether to dismiss a claim for failure to prosecute or failure to comply with a court order, 16 the Court must weigh the following factors: (1) the public’s interest in expeditious 17 resolution of litigation; (2) the Court’s need to manage its docket; (3) the risk of prejudice 18 to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public 19 policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 20 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260‒61 (9th Cir. 1992)). 21 Because the Court has repeatedly informed Plaintiff of his need to timely amend, 22 factors one, two, and four weigh in favor of dismissal. See Ferdik, 963 F.2d at 1262 (“[A] 23 district court’s warning to a party that his failure to obey the court’s order will result in 24 dismissal can satisfy the ‘consideration of alternatives’ requirement.”); Henderson, 779 25 F.2d at 1424; Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (“[T]he 26 public’s interest in expeditious resolution of litigation always favors dismissal.”); 27 Pagtalunan, 291 F.3d at 642 (“The trial judge is in the best position to determine whether 28 the delay in a particular case interferes with docket management and the public interest.”); 1 || Nevijel v. North Coast Life Insurance Co., 651 F.2d 671, 674 (9th Cir. 1981) (a court is not 2 required to exhaust all alternatives prior to dismissal). Factor five also supports dismissal. 3 || See In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 1217, 1227 (9th Cir. 4 || 2006) (public policy favoring disposition on the merits does not weigh against dismissal 5 || where plaintiffs “conduct impedes progress in that direction.”). Finally, because Plaintiff 6 ||has failed to file a pleading that survives initial screening, the United States Marshal has 7 ||not been ordered to effect service of process in this case pursuant to 28 U.S.C. § 1915(d) 8 Fed. R. Civ. P. 4(c)(3), and no defendant has appeared. Therefore, while the “pendency 9 || of a lawsuit is not sufficiently prejudicial in and of itself to warrant dismissal,” Pagtalunan, 10 F.3d at 642, when taken all together, the Court finds the weight of these factors justify 11 ||dismissal pursuant to Fed. R. Civ. P. 41(b) and entry of final judgment is warranted. See 12 || Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (“We may affirm a 13 dismissal where at least four factors support dismissal, or where at least three factors 14 || ‘strongly’ support dismissal.”) (internal citation omitted) (quoting Ferdik, 963 F.2d at 15 || 1263). 17 For the reasons explained, the Court DISMISSES this civil action based on 18 || Plaintiffs failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. 19 1915(e)(2)(B)Gi) and 1915A(b)(1), and his failure to amend as required by the Court’s 20 || October 2, 2024; November 20, 2024; February 24, 2024; and March 28, 2025 Orders. (See 21 Nos. 9, 11, 14, 17.) The Court further CERTIFIES that an IFP appeal would not be 22 ||taken in good faith pursuant to 28 U.S.C. § 1915(a)(3), and DIRECTS the Clerk of Court 23 enter a final judgment of dismissal and close the file. 25 Dated: September 26, 2025

27 United States District Judge 28