Douglas Lasance v. Warden

• Court: District Court, C.D. California
• Decided: January 7, 2022
• Docket: 2:21-cv-06501
• Status: Unknown

Opinion

Case 2:21-cv-06501-MCS-MAR Document 11 Filed 01/07/22 Page 1 of 6 Page ID #:34

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4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8

9 10 DOUGLAS LASANCE, Case No. 2:21-cv-6501-MCS (MAR) 11 Plaintiff, MEMORANDUM AND ORDER DISMISSING CASE 12 v. 13 WARDEN, ET AL., 14 Defendant. 15 16 17 I. 18 INTRODUCTION 19 On August 3, 2021, Douglas Lasance (“Plaintiff”) constructively filed1 a pro se 20 Civil Rights Complaint (“Complaint”) pursuant to 42 U.S.C. § 1983 (“section 1983”). 21 ECF Docket No. (“Dkt.”) 1. On September 3, 2021, the Court dismissed the 22 Complaint with leave to amend (“ODLA”), granting Plaintiff until October 4, 2021 to 23 file a First Amended Complaint (“FAC”). Dkt. 8 at 9. To date, Plaintiff has not filed 24 a FAC. For the reasons below, the Court DISMISSES this action, without prejudice. 25

26 1 Under the “mailbox rule”, when a pro se prisoner gives prison authorities a pleading to mail to the 27 court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010); Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 28 2009) (stating the “mailbox rule applies to § 1983 suits filed by pro se prisoners”). Case 2:21-cv-06501-MCS-MAR Document 11 Filed 01/07/22 Page 2 of 6 Page ID #:35

1 II. 2 BACKGROUND 3 On August 3, 2021, Douglas Lasance (“Plaintiff”), proceeding pro se and in 4 forma pauperis (“IFP”), constructively filed a Civil Rights Complaint pursuant to 5 section 1983 in the Eastern District of California. Dkt. 1. On August 17, 2021, the 6 case was transferred to the Central District. Dkt. 3. On September 3, 2021, the Court 7 issued an ODLA, granting Plaintiff until October 4, 2021 to file a FAC. Dkt. 8 at 9. 8 On October 25, 2021, this Court issued an Order to Show Cause (“OSC”) 9 ordering Plaintiff to show by November 15, 2021 why this action should not be 10 dismissed for failure to prosecute. Dkt. 9. Plaintiff was warned that “[f]ailure to 11 respond to the Court’s Order may result in the dismissal of the action.” Id. 12 (emphasis added). 13 On November 30, 2021, this Court issued a second OSC ordering Plaintiff to 14 respond to the Court’s previous Orders. Dkt. 10. Plaintiff was warned that he “must 15 comply…by December 14, 2021, or this action will be dismissed for failure to 16 prosecute.” Id. (emphasis in original). Plaintiff has not corresponded with the Court 17 at all since he filed the Complaint on August 3, 2021. 18 III. 19 DISCUSSION 20 A. APPLICABLE LAW 21 District courts have sua sponte authority to dismiss actions for failure to 22 prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. Wabash 23 R.R. Co., 370 U.S. 626, 629–30 (1962); Hells Canyon Pres. Council v. U.S. Forest 24 Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating courts may dismiss an action under 25 Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute 26 or comply with the Federal Rules of Civil Procedure or the court’s orders); Ferdik v. 27 Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (ordering dismissal for failure to 28 comply with court orders). 2 Case 2:21-cv-06501-MCS-MAR Document 11 Filed 01/07/22 Page 3 of 6 Page ID #:36

1 In deciding whether to dismiss for failure to prosecute or comply with court 2 orders, a district court must consider five (5) factors: “(1) the public’s interest in 3 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 4 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases 5 on their merits; and (5) the availability of less drastic sanctions.” Omstead v. Dell, 6 Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson v. Duncan, 779 F.2d 7 1421, 1423 (9th Cir. 1986)). 8 “[The Ninth Circuit] ‘may affirm dismissal where at least four factors support 9 dismissal . . . or where at least three factors “strongly” support dismissal.’” Yourish v. 10 California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (quoting Hernandez v. City of 11 El Monte, 138 F.3d 393, 399 (9th Cir. 1998)). In a case involving sua sponte 12 dismissal, however, the fifth Henderson factor regarding the availability of less drastic 13 sanctions warrants special focus. Hernandez, 138 F.3d at 399. 14 B. ANALYSIS 15 1. The public’s interest in expeditious resolution of litigation 16 In the instant action, the public’s interest in expeditious resolution of litigation 17 weighs in favor of dismissal. See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 18 2002) (“The public’s interest in expeditious resolution of litigation always favors 19 dismissal.” (quoting Yourish, above) (internal quotation omitted)). Plaintiff has not 20 filed a FAC in compliance with the Court’s September 3, 2021 ODLA or otherwise 21 responded to the Court’s October 25, 2021 or November 30, 2021 OSCs. In fact, 22 Plaintiff has not corresponded with the Court at all since he first filed his Complaint 23 on August 3, 2021. Dkt. 1. Given that Plaintiff has failed to interact with the Court 24 for over four (4) months, this factor weighs in favor of dismissal. See Dkt. 1; see also 25 Pagtalunan, 291 F.3d at 642 (finding that the plaintiff’s failure to pursue the case for 26 almost four (4) months weighed in favor of dismissal). 27 /// 28 /// 3 Case 2:21-cv-06501-MCS-MAR Document 11 Filed 01/07/22 Page 4 of 6 Page ID #:37

1 2. The Court’s need to manage its docket 2 The second factor—the Court’s need to manage its docket—likewise weighs in 3 favor of Dismissal. Courts have “the power to manage their dockets without being 4 subject to the endless vexatious noncompliance of litigants.” See Ferdik, 963 F.2d at 5 1261. As such, the second factor looks to whether a particular case has “consumed . . 6 . time that could have been devoted to other cases on the [Court’s] docket.” See 7 Pagtalunan, 291 F.3d at 642; Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th 8 Cir. 2004) (“[R]esources continue to be consumed by a case sitting idly on the court’s 9 docket.”). 10 On September 3, 2021, the Court issued an ODLA ordering Plaintiff to file a 11 FAC by October 4, 2021. Dkt. 8 at 9. The ODLA explicitly cautioned Plaintiff 12 “failure to timely file a First Amended Complaint in conformity with this Order will 13 result in the dismissal of the action.” Id. at 10. 14 On October 25, 2021, after Plaintiff failed to respond to the ODLA, the Court 15 issued an OSC why the Complaint should not be dismissed for lack of prosecution. 16 Dkt. 9. The Court issued a second OSC on November 30, 2021, warning that failure 17 to respond will result in dismissal. Dkt. 10. 18 Plaintiff has failed to comply, or otherwise respond, to any of the Court’s 19 Orders, all of which warned Plaintiff that his failure to comply could or would result 20 in the recommended dismissal of the Complaint. See Dkts. 8 at 10; 9; 10. Plaintiff’s 21 failure to prosecute and follow Court Orders hinders the Court’s ability to move this 22 case toward disposition and suggests Plaintiff does not intend to or cannot litigate this 23 action diligently. Consequently, the Court’s need to manage its docket favors 24 dismissal here. 25 3. The risk of prejudice to Defendant 26 The third factor—prejudice to Defendant(s)—also weighs in favor of dismissal. 27 A rebuttable presumption of prejudice to defendant arises when plaintiffs 28 unreasonably delay prosecution of an action. See In re Eisen, 31 F.3d 1447, 1452–53 4 Case 2:21-cv-06501-MCS-MAR Document 11 Filed 01/07/22 Page 5 of 6 Page ID #:38

1 (9th Cir. 1994) (“[T]he failure to prosecute diligently is sufficient by itself to justify 2 dismissal . . . [t]he law presumes injury from unreasonable delay.”). 3 Nothing suggests such a presumption is unwarranted in this case. Plaintiff has 4 not provided any reason for his failure to comply with either the Court’s ODLA or 5 OSC and for his failure to communicate with the Court since he filed the original 6 Complaint on August 3, 2021. Dkt. 1. Given the length of the delay, the Court finds 7 Plaintiff’s delay in prosecuting this case to be unreasonable. Thus, prejudice is 8 presumed and weighs in favor of dismissal. See, e.g., In re Phenylpropanolamine 9 (PPA) Prod. Liab. Litig., 460 F.3d at 1227 (“The law . . . presumes prejudice from 10 unreasonable delay.”). 11 4. Public policy favoring disposition on the merits 12 The fourth factor—public policy in favor of deciding cases on the merits— 13 ordinarily weighs against dismissal. See In re Phenylpropanolamine (PPA) Prod. Liab. 14 Litig., 460 F.3d at 1228. Here, as it usually does, the fourth factor weighs against 15 dismissal. It is, however, Plaintiff’s responsibility to move towards disposition at a 16 reasonable pace and avoid dilatory and evasive tactics. See Morris v. Morgan Stanley, 17 942 F.2d 648, 652 (9th Cir. 1991). Plaintiff has not discharged this responsibility 18 despite having been: (1) instructed on his responsibilities; (2) granted sufficient time 19 in which to discharge them; and (3) warned of the consequences of failure to do so. 20 See Dkts. 8 at 10; 9; 10. Under these circumstances, and without any other 21 information from Plaintiff, the policy favoring resolution of disputes on the merits 22 does not outweigh Plaintiff’s failure to obey Court Orders or to file responsive 23 documents within the time granted. 24 5. Availability of less drastic alternatives 25 The fifth factor—availability of less drastic sanctions—also weighs in favor of 26 dismissal. A “district court need not exhaust every sanction short of dismissal before 27 finally dismissing a case, but must explore possible and meaningful alternatives.” 28 Henderson, 779 F.2d at 1424. Less drastic alternatives to dismissal include warning a 5 Case P:21-cv-06501-MCS-MAR Document11 Filed 01/07/22 Page6of6 Page ID #:39

1 | party that dismissal could result from failure to obey a court order. See Malone, 833 2 | F.2d at 132 n.1. Further, “a district court’s warning to a party that his [or her] failure 3 | to obey the court’s order will result in dismissal can satisfy the ‘consideration of 4 | alternatives’ requirement.” Ferdik, 963 F.2d at 1262 (citations omitted). 5 Here, the Court cannot move the case toward disposition without Plaintiffs 6 | compliance with Court Orders or participation in this litigation. Plaintiff has shown 7 | he is either unwilling or unable to comply with Court Orders by filing responsive 8 | documents or otherwise cooperating in prosecuting this action. Given this record, the 9 | Court finds that any less drastic alternatives to dismissal would be inadequate to 10 | remedy Plaintiffs failures to obey Court Orders and to prosecute. 11 6. Summary 12 Finally, while dismissal should not be entered unless Plaintiff has been notified 13 | dismissal is imminent, see W. Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 14 | 1523 9th Cir. 1990), the Court has warned Plaintiff about the potential dismissal in 15 | the September 3, 2021 ODLA and in two (2) separate OSCs. See Dkts. 8 at 10; 9; 10. 16 As discussed above, four (4) of the Rule 41(b) factors weigh in favor of 17 | dismissal. Accordingly, this action is subject to dismissal. 18 IV. 19 ORDER 20 IT IS THEREFORE ORDERED THAT Petitionet’s case is DISMISSED 21 | without prejudice. 22 93 | Dated: January 7, 2022 Hy / £ . COMA 24 HONORABLE MARK C. SCARSI 95 United States District Judge Presented by: 26 (Bx 27 | MARGO A.ROCCONT 38 United States Magistrate Judge