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11 DEMITRIUS FURLOW, Case No. 2:19-cv-09443-MWF (SHK) 12 Plaintiff, 13 ORDER DISMISSING COMPLAINT v. 14
LOS ANGELES TRADE TECHNICAL 15 COLLEGE, et al.,
16 Defendants. 17
18 20 On November 1, 2019, Plaintiff Demitrius Furlow (“Plaintiff”), proceeding 21 pro se and in forma pauperis (“IFP”), filed a Complaint (“Complaint” or 22 “Compl.”) against Defendants Los Angeles Trade Technical College, Dr. Henan 23 Joof, and Deputy Security Lopez (collectively “Defendants”) asserting claims 24 under 42 U.S.C. § 1983. Electronic Case Filing Number (“ECF No.”) 1, Compl.; 25 ECF No. 2, IFP Request; ECF No. 3, Order Granting IFP Request. 26 On January 10, 2020, after screening the Complaint, the Court issued an 27 Order Dismissing Complaint With Leave To Amend (“OLDA”). ECF No. 17, 1 Amended Complaint (“FAC”), should he so choose. Id. at 14-16. In the ODLA, 2 the Court warned that “if Plaintiff does not comply with the instructions 3 enumerated above,” including timely filing a FAC, “the Court may recommend 4 that this action be dismissed with or without prejudice for failure to state a claim, 5 failure to prosecute, and/or failure to obey Court orders under Federal Rule of 6 Civil Procedure 41(b).” Id. at 15-16. Plaintiff failed to timely file his FAC as 7 ordered. 8 On January 17, 21, and 27, 2020, the Court received returned mail showing 9 that the ODLA and other Court orders were undeliverable to the address Plaintiff 10 provided. See ECF Nos. 18-20.1 The Court concluded that Plaintiff had failed to 11 keep the Court apprised of his current address as required by Local Rule 41-6, and 12 the Court issued an Order to Show Cause (“OSC”) “in writing on or before 13 February 11, 2020, of his current address, and by either: (1) filing a FAC as set out 14 in the ODLA, ECF No. 17, or (2) notifying the Court that he no longer wishes to 15 pursue this action.” ECF No. 21, OSC. In the OSC, the Court warned that 16 “[f]ailure to file a response by [February 11, 2020,] will result in a recommendation 17 that the action be dismissed with or without prejudice.” Id. at 2 (emphasis in 18 original). 19 In the meanwhile, Plaintiff has filed other federal lawsuits in this Court but 20 has failed to address the issues outstanding in this case. See Furlow v. Wells Fargo 21 Bank, et al., Case No. 2:20-cv-00136-AB-JC (denying IFP application and 22 dismissing case because IFP application was incomplete, failed to allege basis for 23 subject matter jurisdiction, and failed to state a viable claim for relief); Furlow v. 24 D.P.S.S., Case No. 2:20-cv-00577-MWF-SHK (denying IFP application because 25 the legal basis for the case is legally and/or factually patently frivolous and
26 1 Plaintiff previously failed to notify the Court of an address change. See ECF Nos. 9, 11, 12, Mail 27 returned to Court. The Court also previously warned Plaintiff that Local Rule 41-6 requires pro 1 dismissing case); Furlow v. Roybal Federal Building, Case No. 2:20-cv-01261- 2 MWF-SHK (the Magistrate Judge issued a Report and Recommendation 3 dismissing the action). 4 As of the date of this Order, Plaintiff has failed show cause why this case 5 should not be dismissed or to otherwise participate in this litigation. Plaintiff has 6 failed to respond with his new address, has not filed a FAC, and has not otherwise 7 contacted the Court. 9 Local Rule 41-6 states that “[i]f mail directed by the Clerk to a pro se 10 plaintiff’s address of record is returned undelivered by the Postal Service, and if 11 within fifteen (15) days of the service date, such plaintiff fails to notify, in writing, 12 the Court and opposing party of said plaintiff’s current address, the Court may 13 dismiss with action with or without prejudice for want of prosecution.” Here, over 14 a month has passed since the Court first received court mail addressed to Plaintiff 15 returned undelivered by the Postal Service and Plaintiff has yet to notify the Court 16 of a current address. See ECF No. 19. 17 District courts have sua sponte authority to dismiss actions for failure to 18 prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. 19 Wabash R.R. Co., 370 U.S. 626, 629-30 (1962); Hells Canyon Pres. Council v. U.S. 20 Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating courts may dismiss an 21 action under Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s 22 failure to prosecute or comply with the Federal Rules of Civil Procedure or the 23 court’s orders); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (ordering 24 dismissal for failure to comply with court orders). 25 In deciding whether to dismiss for failure to prosecute or comply with court 26 orders, a district court must consider five factors: “(1) the public’s interest in 27 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) 1 cases on their merits; and (5) the availability of less drastic sanctions.” Henderson 2 v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); see also Pagtalunan v. Galaza, 291 3 F.3d 639, 642 (9th Cir. 2002) (setting out similar five factors as in Henderson). 4 “Dismissal is appropriate ‘where at least four factors support dismissal, or where at 5 least three factors ‘strongly’ support dismissal.’” Neal v. Reslan, No. CV 19- 6 09291 PA (ASx), 2020 WL 754366, at *1 (C.D. Cal. Jan. 16, 2020) (quoting 7 Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (internal citations 8 omitted) (citing Ferdik, 963 F.2d at 1263)). In a case involving sua sponte 9 dismissal, however, the fifth Henderson factor regarding the availability of less 10 drastic sanctions warrants special focus. Hernandez, 138 F.3d at 399. 11 Here, the first two factors—public interest in expeditious resolution of 12 litigation and the court’s need to manage its docket—weigh in favor of dismissal. 13 Plaintiff has repeatedly failed to keep the Court apprised of his address and has 14 failed to respond to Court orders. This failure to prosecute and follow court orders 15 hinders the Court’s ability to move this case toward disposition and suggests 16 Plaintiff does not intend to litigate this action diligently. See id. 17 The third factor—prejudice to Defendant—also weighs in favor of dismissal. 18 A rebuttable presumption of prejudice to a defendant arises when plaintiffs 19 unreasonably delay prosecution of an action. See In re Eisen, 31 F.3d 1447, 1452-53 20 (9th Cir. 1994) (citations omitted). Plaintiff has not provided any information to 21 rebut this presumption and nothing else suggests such a presumption is 22 unwarranted in this case. 23 The fourth factor—public policy in favor of deciding cases on the merits— 24 ordinarily weighs against dismissal. However, it is Plaintiff’s responsibility to move 25 litigation towards disposition at a reasonable pace and to avoid dilatory and evasive 26 tactics. See Morris v.
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11 DEMITRIUS FURLOW, Case No. 2:19-cv-09443-MWF (SHK) 12 Plaintiff, 13 ORDER DISMISSING COMPLAINT v. 14
LOS ANGELES TRADE TECHNICAL 15 COLLEGE, et al.,
16 Defendants. 17
18 20 On November 1, 2019, Plaintiff Demitrius Furlow (“Plaintiff”), proceeding 21 pro se and in forma pauperis (“IFP”), filed a Complaint (“Complaint” or 22 “Compl.”) against Defendants Los Angeles Trade Technical College, Dr. Henan 23 Joof, and Deputy Security Lopez (collectively “Defendants”) asserting claims 24 under 42 U.S.C. § 1983. Electronic Case Filing Number (“ECF No.”) 1, Compl.; 25 ECF No. 2, IFP Request; ECF No. 3, Order Granting IFP Request. 26 On January 10, 2020, after screening the Complaint, the Court issued an 27 Order Dismissing Complaint With Leave To Amend (“OLDA”). ECF No. 17, 1 Amended Complaint (“FAC”), should he so choose. Id. at 14-16. In the ODLA, 2 the Court warned that “if Plaintiff does not comply with the instructions 3 enumerated above,” including timely filing a FAC, “the Court may recommend 4 that this action be dismissed with or without prejudice for failure to state a claim, 5 failure to prosecute, and/or failure to obey Court orders under Federal Rule of 6 Civil Procedure 41(b).” Id. at 15-16. Plaintiff failed to timely file his FAC as 7 ordered. 8 On January 17, 21, and 27, 2020, the Court received returned mail showing 9 that the ODLA and other Court orders were undeliverable to the address Plaintiff 10 provided. See ECF Nos. 18-20.1 The Court concluded that Plaintiff had failed to 11 keep the Court apprised of his current address as required by Local Rule 41-6, and 12 the Court issued an Order to Show Cause (“OSC”) “in writing on or before 13 February 11, 2020, of his current address, and by either: (1) filing a FAC as set out 14 in the ODLA, ECF No. 17, or (2) notifying the Court that he no longer wishes to 15 pursue this action.” ECF No. 21, OSC. In the OSC, the Court warned that 16 “[f]ailure to file a response by [February 11, 2020,] will result in a recommendation 17 that the action be dismissed with or without prejudice.” Id. at 2 (emphasis in 18 original). 19 In the meanwhile, Plaintiff has filed other federal lawsuits in this Court but 20 has failed to address the issues outstanding in this case. See Furlow v. Wells Fargo 21 Bank, et al., Case No. 2:20-cv-00136-AB-JC (denying IFP application and 22 dismissing case because IFP application was incomplete, failed to allege basis for 23 subject matter jurisdiction, and failed to state a viable claim for relief); Furlow v. 24 D.P.S.S., Case No. 2:20-cv-00577-MWF-SHK (denying IFP application because 25 the legal basis for the case is legally and/or factually patently frivolous and
26 1 Plaintiff previously failed to notify the Court of an address change. See ECF Nos. 9, 11, 12, Mail 27 returned to Court. The Court also previously warned Plaintiff that Local Rule 41-6 requires pro 1 dismissing case); Furlow v. Roybal Federal Building, Case No. 2:20-cv-01261- 2 MWF-SHK (the Magistrate Judge issued a Report and Recommendation 3 dismissing the action). 4 As of the date of this Order, Plaintiff has failed show cause why this case 5 should not be dismissed or to otherwise participate in this litigation. Plaintiff has 6 failed to respond with his new address, has not filed a FAC, and has not otherwise 7 contacted the Court. 9 Local Rule 41-6 states that “[i]f mail directed by the Clerk to a pro se 10 plaintiff’s address of record is returned undelivered by the Postal Service, and if 11 within fifteen (15) days of the service date, such plaintiff fails to notify, in writing, 12 the Court and opposing party of said plaintiff’s current address, the Court may 13 dismiss with action with or without prejudice for want of prosecution.” Here, over 14 a month has passed since the Court first received court mail addressed to Plaintiff 15 returned undelivered by the Postal Service and Plaintiff has yet to notify the Court 16 of a current address. See ECF No. 19. 17 District courts have sua sponte authority to dismiss actions for failure to 18 prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. 19 Wabash R.R. Co., 370 U.S. 626, 629-30 (1962); Hells Canyon Pres. Council v. U.S. 20 Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating courts may dismiss an 21 action under Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s 22 failure to prosecute or comply with the Federal Rules of Civil Procedure or the 23 court’s orders); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (ordering 24 dismissal for failure to comply with court orders). 25 In deciding whether to dismiss for failure to prosecute or comply with court 26 orders, a district court must consider five factors: “(1) the public’s interest in 27 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) 1 cases on their merits; and (5) the availability of less drastic sanctions.” Henderson 2 v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); see also Pagtalunan v. Galaza, 291 3 F.3d 639, 642 (9th Cir. 2002) (setting out similar five factors as in Henderson). 4 “Dismissal is appropriate ‘where at least four factors support dismissal, or where at 5 least three factors ‘strongly’ support dismissal.’” Neal v. Reslan, No. CV 19- 6 09291 PA (ASx), 2020 WL 754366, at *1 (C.D. Cal. Jan. 16, 2020) (quoting 7 Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (internal citations 8 omitted) (citing Ferdik, 963 F.2d at 1263)). In a case involving sua sponte 9 dismissal, however, the fifth Henderson factor regarding the availability of less 10 drastic sanctions warrants special focus. Hernandez, 138 F.3d at 399. 11 Here, the first two factors—public interest in expeditious resolution of 12 litigation and the court’s need to manage its docket—weigh in favor of dismissal. 13 Plaintiff has repeatedly failed to keep the Court apprised of his address and has 14 failed to respond to Court orders. This failure to prosecute and follow court orders 15 hinders the Court’s ability to move this case toward disposition and suggests 16 Plaintiff does not intend to litigate this action diligently. See id. 17 The third factor—prejudice to Defendant—also weighs in favor of dismissal. 18 A rebuttable presumption of prejudice to a defendant arises when plaintiffs 19 unreasonably delay prosecution of an action. See In re Eisen, 31 F.3d 1447, 1452-53 20 (9th Cir. 1994) (citations omitted). Plaintiff has not provided any information to 21 rebut this presumption and nothing else suggests such a presumption is 22 unwarranted in this case. 23 The fourth factor—public policy in favor of deciding cases on the merits— 24 ordinarily weighs against dismissal. However, it is Plaintiff’s responsibility to move 25 litigation towards disposition at a reasonable pace and to avoid dilatory and evasive 26 tactics. See Morris v. Morgan Stanley, 942 F.2d 648, 652 (9th Cir. 1991). Plaintiff 27 has not met this responsibility despite having been: (1) instructed on his 1 | repeatedly warned of the consequences of failure to do so. See ECF Nos. 16, 17, 21. 2 | Under these circumstances, the policy favoring resolution of disputes on the merits 3 | does not outweigh Plaintiff’s failure to obey Court orders or to file responsive 4 | documents within the time granted. 5 The fifth factor—availability of less drastic sanctions —also weighs in favor 6 | of dismissal. The Court cannot move the case toward disposition without 7 | Plaintiff’s compliance with Court orders or participation in this litigation. Plaintiff 8 | has shown he is either unwilling or unable to comply with Court orders by failing to 9 | file responsive documents or otherwise cooperate in prosecuting this action. The 10 | Court is not aware of any lesser sanction that is available in this case. See 11 | Hernandez, 779 F.2d at 1424 (“The district court need not exhaust every sanction 12 | short of dismissal before finally dismissing a case but must explore possible and 13 | meaningful alternatives.”) (citation omitted). 14 Accordingly, because it appears that Plaintiff has abandoned this litigation, 15 | and because Plaintiff has repeatedly defied Court orders, the Court DISMISSES 16 | this case, without prejudice. 17 Il. ORDER 18 Based on the foregoing, IT IS ORDERED THAT the Judgment be entered 19 | DISMISSING this case without prejudice. Hee Y Ge del 21 | DATED: April 6, 2020 ef We 7 be 2 United States District}udee 23 24 | Presented by: 25 Bp ete 26 | HON. SHASHIH. KEWALRAMANI 54 United States Magistrate Judge 28