Jesse Roman v. S. Franco

• Court: District Court, C.D. California
• Decided: November 18, 2019
• Docket: 2:18-cv-05669
• Status: Unknown

Opinion

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

11 JESSE MAX ROMAN, RCase No. 2:18-05669 PA (ADS) i 12 Plaintiff, c h 13 v. a ORDER DISMISSING ACTION FOR r FAILURE TO PROSECUTE 14 S. FRANCO, et al., d Defendant. 15 16 17 18 I. INTRODUCTION 19 Plaintiff Jesse Max Roman (“Plaintiff”), previously a prisoner at the Federal 20 Correctional Institute, Mendota and the Santa Ana Jail proceeding pro se, filed a civil 21 rights Complaint under 42 U.S.C. § 1983. [Dkt. No. 1]. On July 17, 2019, during 22 screening, the Court dismissed the Complaint with leave to amend and granted Plaintiff 23 leave to file a First Amended Complaint by no later than August 9, 2019. [Dkt. No. 11]. 24 On August 8, 2019, Plaintiff filed a Motion for Extension of Time seeking additional 1 time to respond to the Order Dismissing with Leave to Amend, which the Court granted, 2 allowing Plaintiff to file a response by no later than September 9, 2019. [Dkt. Nos. 12, 3 13]. After receiving no further filings, on October 4, 2019, the Court issued an Order to 4 Show Cause Why Case Should Not Be Dismissed for Failure to Prosecute and Obey 5 Court Orders requiring a response by October 25, 2019. [Dkt. No. 14]. Despite warnings

6 that the case may be dismissed, Plaintiff has not filed any response to the July 17, 2019 7 Order Dismissing with Leave to Amend or to the October 4, 2019 Order to Show Cause. 8 Plaintiff’s last submission to the Court was on August 8, 2019. [Dkt. No. 12]. 9 II. DISCUSSION 10 Dismissal of this action is warranted due to Plaintiff’s failure to prosecute the 11 case and comply with court orders. The Court has the inherent power to achieve the 12 orderly and expeditious disposition of cases by dismissing actions pursuant to Fed. R. 13 Civ. P. 41(b) for failure to prosecute and failure to comply with a court order. See Link v. 14 Wabash R.R. Co., 370 U.S. 626, 629-30 (1962); see also Pagtalunan v. Galaza, 291 15 F.3d 639, 640 (9th Cir. 2002). The Court weighs the following factors when 16 determining whether to dismiss an action for failure to comply with a court order or

17 failure to prosecute: (1) the public’s interest in the expeditious resolution of litigation; 18 (2) the Court’s need to manage its docket; (3) the risk of prejudice to the defendant; 19 (4) the public policy favoring disposition of cases on their merits; and (5) the availability 20 of less drastic sanctions. Pagtalunan, 291 F.3d at 642. 21 Here, the first, second, third, and fifth factors weigh in favor of dismissal. First, 22 Plaintiff has failed to engage with this case in any way since August 2019 and failed 23 respond to the Court’s July 17, 2019 Order Dismissing with Leave to Amend or to the 24 October 4, 2019 Order to Show Cause. This failure to prosecute the case has interfered 1 with the public’s interest in the expeditious resolution of this litigation and the Court’s 2 need to manage its docket. See Yourish v. California Amplifier, 191 F.3d 983, 990 (9th 3 Cir. 1999) (“[T]he public’s interest in expeditious resolution of litigation always favors 4 dismissal.”). Second, Plaintiff has failed to rebut the presumption that defendants have 5 been prejudiced by this unreasonable delay. In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir.

6 1994) (“The law presumes injury from unreasonable delay.”) (quoting Anderson v. Air 7 West, Inc., 542 F.2d 522, 524 (9th Cir. 1976)). Third, there is no less drastic sanction 8 available as the Court has warned Plaintiff multiple times that the case would be 9 dismissed. Accordingly, the Court has taken meaningful steps to explore alternatives to 10 dismissal. See Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (“The district 11 court need not exhaust every sanction short of dismissal before finally dismissing a case, 12 but must explore possible and meaningful alternatives.”). Finally, although the fourth 13 factor always weighs against dismissal, here Plaintiff’s failure to discharge his 14 responsibility to move the case towards a disposition outweighs the public policy 15 favoring disposition on the merits. Morris v. Morgan Stanley Co., 942 F.2d 648, 652 16 (9th Cir. 1991) (“Although there is indeed a policy favoring disposition on the merits, it

17 is the responsibility of the moving party to move towards that disposition at a 18 reasonable pace, and to refrain from dilatory and evasive tactics.”). Having weighed 19 these factors, the Court finds that dismissal of this action without prejudice is 20 warranted. 21 /// 22 /// 23 /// 24 /// 1 CONCLUSION 2 Accordingly, this action is dismissed without prejudice for failure to prosecute. 3 || Judgment is to be entered accordingly. 4 5 IT IS SO ORDERED. 6 7 Dated: November 18, 2019 | > : Wiz 9 PERCY ANDERSON United States District Judge 10 11 || Presented by: 12 || S/Autumn D. Spaeth 13 || THE HONORABLE AUTUMN D. SPAETH United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24