Jane M. Murray v. City of Fountain Valley Police Sgt. Mike Parsons

Opinion

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA JANE M. MURRAY, Case No. 8:19-cv-00768-GW-JC Plaintiff, v. ORDER DISMISSING ACTION SGT. MIKE PARSONS, et al., Defendants. I. BACKGROUND AND SUMMARY On April 26, 2019, plaintiff Jane M. Murray, who is at liberty, is proceeding pro se and has been granted leave to proceed in forma pauperis, filed a Civil Rights Complaint (“Original Complaint” or “OC”) pursuant to 42 U.S.C. § 1983 against the City of Fountain Valley (the “City”), Fountain Valley Police Department (“FVPD”) Chief Kevin Childes in his official capacity, and FVPD Officer Mike Parsons in both his individual and official capacities. (Docket No. 1). Plaintiff’s Original Complaint set forth five causes of action and sought compensatory and punitive damages. (OC at 5-10). /// On August 27, 2020, this Court dismissed the punitive damages request against the City and the individual defendants in their official capacities with prejudice and dismissed the remainder of the Original Complaint with leave to amend. (Docket No. 24). On September 11, 2020, plaintiff filed a First Amended Complaint, and on September 14, 2020, plaintiff filed a Corrected First Amended Complaint (hereinafter “First Amended Complaint” or “FAC”) against the City, Chief Childes in his official capacity, and Officer Parsons in his individual capacity. (Docket Nos. 25-26). On August 20, 2021, this Court issued an Order dismissing the First Amended Complaint as against the City and Chief Childes in his official capacity with leave to amend (“August Order”). (Docket No. 36). The August Order further directed plaintiff within fourteen (14) days (i.e., by September 3, 2021), to do one of the following: (1) file a Second Amended Complaint; (2) file a Notice of Dismissal; or (3) file a Notice of Intent to Stand on First Amended Complaint. (Docket No. 36). The August Order expressly cautioned plaintiff in bold-faced print that her failure timely to file a Second Amended Complaint, a Notice of Dismissal or a Notice of Intent to Stand on First Amended Complaint may result in the dismissal of this action with or without prejudice against all defendants for failure diligently to prosecute and/or for failure to comply with the August Order. The foregoing September 3, 2021 deadline expired without any action by plaintiff. Plaintiff has not sought an extension of the foregoing deadline or otherwise communicated with the Court since the issuance of the August Order. As discussed below, this action is dismissed due to plaintiff’s unreasonable failure to prosecute and her failure to comply with the August Order. /// /// 2 It is well-established that a district court may sua sponte dismiss an action where the plaintiff has failed to comply with a court order and/or unreasonably failed to prosecute. See Link v. Wabash Railroad Co., 370 U.S. 626, 629-33 (1962); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.) (as amended), cert. denied, 506 U.S. 915 (1992); see also McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991) (district court may sua sponte dismiss action “only for an unreasonable failure to prosecute”) (citations omitted); see also Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 2004) (sua sponte dismissal pursuant to Fed. R. Civ. P. 41(b) proper sanction in cases where a plaintiff is notified of deficiencies in complaint and is given “the opportunity to amend [the complaint] or be dismissed” but the plaintiff “[does] nothing”) (citations omitted; emphasis in original). In determining whether to dismiss an action for failure to prosecute or failure to comply with court orders, a district court must consider several factors, namely (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives. See In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994) (failure to prosecute); Ferdik, 963 F.2d at 1260-61 (failure to comply with court orders). Dismissal is appropriate under the foregoing analysis “where at least four factors support dismissal . . . or where at least three factors ‘strongly’ support dismissal.” Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citations omitted). Where a plaintiff is proceeding pro se, however, the court must first notify the plaintiff of the deficiencies in the complaint so that the plaintiff has an opportunity “to amend effectively.” Ferdik, 963 F.2d at 1261 (citation omitted). A district judge may not dismiss an action for failure to comply with a court order or for unreasonable failure to prosecute if the initial decision to dismiss a complaint 3 was erroneous. Yourish v. California Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (citing id.). First, the August Order was not erroneous and adequately and properly notified plaintiff of the deficiencies in the First Amended Complaint and afforded her an opportunity to amend effectively. Second, dismissal is appropriate based upon plaintiff’s failure to comply with the August Order and the failure to prosecute. The Court has considered the five factors discussed above – the public’s interest in expeditious resolution of litigation, the court’s need to manage its docket, the risk of prejudice to defendants, the public policy favoring disposition of cases on their merits, and the availability of less drastic alternatives. The first two factors – the public’s interest in expeditiously resolving this litigation and the Court’s interest in managing the docket – strongly weigh in favor of dismissal. As noted above, plaintiff has been notified of the deficiencies in the First Amended Complaint and has been given the opportunity to amend it, to dismiss the First Amended Complaint, or to notify the Court that she wishes to stand on it. She has done nothing. See Edwards, 356 F.3d at 1065. The third factor, risk of prejudice to defendants, also weighs strongly in favor of dismissal. See Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976) (prejudice to defendants presumed from unreasonable delay) (citation omitted). The fourth factor, the public policy favoring disposition of cases on their merits, is greatly outweighed by the factors in favor of dismissal discussed herein. As for the fifth factor, since plaintiff has already been cautioned of the consequences of her failure to prosecute and her failure to comply with the August Order, and plaintiff has been afforded the opportunity to avoid such consequences but has not responded, no sanction lesser than dismissal is feasible. See, e.g., Yourish, 191 F.3d at 989 (dismissal of action with prejudice not excessive sanction /// for plaintiffs’ failure timely to comply with court’s order to submit an amended complaint). IT IS THEREFORE ORDERED that this action is dismissed based upon plaintiff's unreasonable failure to prosecute and her failure to comply with the August Order — each of which constitutes an independent and adequate basis to support dismissal. DATED: September 23, 2021 Aferg. hy Ve UNITED STATES DISTRICT JUDGE