1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 NORRIS M. JOHNSON, Case No. 22-cv-1188-BAS-AGS
12 Plaintiff, ORDER DISMISSING ACTION FOR 13 v. FAILURE TO SHOW CAUSE
14 UNITED STATES OF AMERICA,
15 Defendant. 16 17 Plaintiff Norris M. Johnson commenced this action on August 12, 2022, appearing 18 to allege he is the victim of Defendant United States’ medical malpractice while he was a 19 patient at a Veterans Health Administration-run hospital. (Compl., ECF No. 1.) He also 20 moved to proceed in forma pauperis (“IFP”) and for appointment of counsel. (ECF Nos. 21 2 & 3.) The Court denied Johnson’s request to proceed IFP, finding he failed to show he 22 meets the indigency requirements set forth in 28 U.S.C. § 1915, and denied Johnson’s 23 request for appointment of counsel and dismissed without prejudice his Complaint for that 24 reason. (Order at 3, ECF No. 3.) However, the Court opined Johnson could “re-open this 25 case . . . if he pays the full $402 civil and administrative fee required by 28 U.S.C. 1914(a)” 26 by a date certain. (Id.) 27 Johnson paid the requisite filing fee on November 4, 2022, thereby reinstating the 28 action and prompting a summons to issue. (ECF No. 5.) Because Johnson is no longer 1 proceeding IFP, the pre-answer screening required by 28 U.S.C. § 1915(e)(2)(B) is 2 inapplicable to the Complaint. See Lopez v. Smith, 203 F.3d 1122, 1229 (9th Cir. 2000) 3 (en banc). Rather, Federal Rule of Civil Procedure (“Rule”) 4(m) requires Johnson to serve 4 his Complaint upon Defendant United States within 90 days. In this case, Johnson’s 5 deadline to effect service—measured from the day on which Johnson reinstated the instant 6 action and the summons issued—was February 2, 2023. 7 Johnson did not serve the United States on or before his deadline to do so. Thus, 8 this Court ordered Johnson to show cause why his case should not be dismissed for failure 9 to prosecute under Rule 41(b) and pursuant to this Court’s inherent authority. It explained 10 Johnson could show cause “by no later than February 24, 2023,” either by “(1) 11 completing service pursuant to Rule 4(i)(1) and filing proof thereof or (2) requesting an 12 extension of time to do so.” (Order to Show Cause (“OSC”) at 2, ECF No. 6.) And it 13 warned Johnson his action would be dismissed if he ignored the Order to Show Cause. 14 (Id.) February 24, 2023 has come and gone, yet Johnson has not attempted to comply with 15 this Court’s Order to Show Cause. 16 It is well-settled that a district court may dismiss a plaintiff’s action for failure to 17 prosecute or failure to comply with a court order. See Fed. R. Civ. P. 41(b); Pagtalunan v. 18 Galaza, 291 F.3d 639, 642 (9th Cir. 2002); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th 19 Cir. 1992) (holding that a district court may dismiss an action for failure to comply with 20 any order of the court); Link v. Wabash R.R. Co., 370 U.S. 626, 630–31 (1962) (holding 21 courts are vested with an inherent power “to manage their own affairs so as to achieve the 22 orderly and expeditious disposition of cases”). Although due process generally requires 23 that a plaintiff have notice and opportunity to be heard before dismissal, when a plaintiff 24 may be said to have knowledge of the consequences of his failure to act, the court may 25 dispense with the necessity of advance notice and a hearing. Link, 370 U.S. at 630–32. 26 “Despite this authority, dismissal is a harsh penalty and, therefore, it should only be 27 imposed in extreme circumstances.” Ferdik, 963 F.2d at 1260. Thus, to determine whether 28 dismissal under its inherent authority is appropriate, “the district court must weigh five 1 factors, including: (1) the public’s interest in expeditious resolution of litigation; (2) the 2 court’s need to manage its docket; (3) the risk of prejudice to defendants; (4) the public 3 policy of favoring disposition of cases on their merits; and (5) the availability of less drastic 4 alternatives.” Id. at 1260–61 (internal quotations omitted). Generally, these five factors 5 weigh in favor of sua sponte dismissal where a plaintiff has failed to prosecute a case or 6 comply with an order of the court. See Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 7 1987); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005). 8 Here, the above-mentioned factors weigh decisively in favor of dismissal because 9 Johnson has not demonstrated compliance with the service requirements under the Federal 10 Rules of Civil Procedure or this Court’s Order to Show Cause. 11 Public’s Interest in Expeditious Resolution: “[T]he public’s interest in expeditious 12 resolution of litigation always favors dismissal.” Yourish v. Cal. Amplifier, 191 F.3d 983, 13 990 (9th Cir. 1999). In this case, Johnson’s inaction has undermined expeditious 14 resolution. It has been approximately seven months since Johnson initiated this action and 15 four months since a summons issued, yet there has been no demonstration by Johnson that 16 the adverse party was properly served. The Court’s attempt to prompt Johnson to complete 17 this step has been met with silence. The Court cannot await indefinitely Johnson’s response 18 to the Court’s directive to file a proof of service. Thus, the Court finds that this factor 19 weighs in favor of dismissal. 20 Court’s Need to Manage its Docket: A district court is best positioned to determine 21 whether the delay in a particular case interferes with docket management and the public 22 interest. Ash v. Cuetkov, 739 F.2d 493, 496 (9th Cir. 1984). The Court finds that Johnson’s 23 failure to complete the fundamental step of showing proof of service—despite the Court’s 24 Order to Show Cause—has resulted in a continued delay in the prosecution of this case and 25 has “impermissibly allowed [P]laintiff to control the pace of the docket rather than the 26 [C]ourt.” See Smith v. Cty. of Riverside Sheriff Dep’t, No. ED CV 17-1969 DSF (SP), 2019 27 WL 7865170, at *3 (C.D. Cal. Nov. 18, 2019) (citing Pagtalunan, 291 F.3d at 642 (“It is 28 1 incumbent on the Court to manage its docket without being subject to routine 2 noncompliance of litigants.”)). Consequently , this factor weighs in favor of dismissal. 3 Prejudice to Defendant: “To prove prejudice, a defendant must establish that [a] 4 plaintiff’s actions impaired defendant’s ability to proceed to trial or threatened to interfere 5 with the rightful decision of the case.” Pagtalunan, 291 F.3d at 642 (citing Malone v. U.S. 6 Postal Serv., 833 F.2d 128, 131 (9th Cir. 1987)).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 NORRIS M. JOHNSON, Case No. 22-cv-1188-BAS-AGS
12 Plaintiff, ORDER DISMISSING ACTION FOR 13 v. FAILURE TO SHOW CAUSE
14 UNITED STATES OF AMERICA,
15 Defendant. 16 17 Plaintiff Norris M. Johnson commenced this action on August 12, 2022, appearing 18 to allege he is the victim of Defendant United States’ medical malpractice while he was a 19 patient at a Veterans Health Administration-run hospital. (Compl., ECF No. 1.) He also 20 moved to proceed in forma pauperis (“IFP”) and for appointment of counsel. (ECF Nos. 21 2 & 3.) The Court denied Johnson’s request to proceed IFP, finding he failed to show he 22 meets the indigency requirements set forth in 28 U.S.C. § 1915, and denied Johnson’s 23 request for appointment of counsel and dismissed without prejudice his Complaint for that 24 reason. (Order at 3, ECF No. 3.) However, the Court opined Johnson could “re-open this 25 case . . . if he pays the full $402 civil and administrative fee required by 28 U.S.C. 1914(a)” 26 by a date certain. (Id.) 27 Johnson paid the requisite filing fee on November 4, 2022, thereby reinstating the 28 action and prompting a summons to issue. (ECF No. 5.) Because Johnson is no longer 1 proceeding IFP, the pre-answer screening required by 28 U.S.C. § 1915(e)(2)(B) is 2 inapplicable to the Complaint. See Lopez v. Smith, 203 F.3d 1122, 1229 (9th Cir. 2000) 3 (en banc). Rather, Federal Rule of Civil Procedure (“Rule”) 4(m) requires Johnson to serve 4 his Complaint upon Defendant United States within 90 days. In this case, Johnson’s 5 deadline to effect service—measured from the day on which Johnson reinstated the instant 6 action and the summons issued—was February 2, 2023. 7 Johnson did not serve the United States on or before his deadline to do so. Thus, 8 this Court ordered Johnson to show cause why his case should not be dismissed for failure 9 to prosecute under Rule 41(b) and pursuant to this Court’s inherent authority. It explained 10 Johnson could show cause “by no later than February 24, 2023,” either by “(1) 11 completing service pursuant to Rule 4(i)(1) and filing proof thereof or (2) requesting an 12 extension of time to do so.” (Order to Show Cause (“OSC”) at 2, ECF No. 6.) And it 13 warned Johnson his action would be dismissed if he ignored the Order to Show Cause. 14 (Id.) February 24, 2023 has come and gone, yet Johnson has not attempted to comply with 15 this Court’s Order to Show Cause. 16 It is well-settled that a district court may dismiss a plaintiff’s action for failure to 17 prosecute or failure to comply with a court order. See Fed. R. Civ. P. 41(b); Pagtalunan v. 18 Galaza, 291 F.3d 639, 642 (9th Cir. 2002); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th 19 Cir. 1992) (holding that a district court may dismiss an action for failure to comply with 20 any order of the court); Link v. Wabash R.R. Co., 370 U.S. 626, 630–31 (1962) (holding 21 courts are vested with an inherent power “to manage their own affairs so as to achieve the 22 orderly and expeditious disposition of cases”). Although due process generally requires 23 that a plaintiff have notice and opportunity to be heard before dismissal, when a plaintiff 24 may be said to have knowledge of the consequences of his failure to act, the court may 25 dispense with the necessity of advance notice and a hearing. Link, 370 U.S. at 630–32. 26 “Despite this authority, dismissal is a harsh penalty and, therefore, it should only be 27 imposed in extreme circumstances.” Ferdik, 963 F.2d at 1260. Thus, to determine whether 28 dismissal under its inherent authority is appropriate, “the district court must weigh five 1 factors, including: (1) the public’s interest in expeditious resolution of litigation; (2) the 2 court’s need to manage its docket; (3) the risk of prejudice to defendants; (4) the public 3 policy of favoring disposition of cases on their merits; and (5) the availability of less drastic 4 alternatives.” Id. at 1260–61 (internal quotations omitted). Generally, these five factors 5 weigh in favor of sua sponte dismissal where a plaintiff has failed to prosecute a case or 6 comply with an order of the court. See Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 7 1987); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005). 8 Here, the above-mentioned factors weigh decisively in favor of dismissal because 9 Johnson has not demonstrated compliance with the service requirements under the Federal 10 Rules of Civil Procedure or this Court’s Order to Show Cause. 11 Public’s Interest in Expeditious Resolution: “[T]he public’s interest in expeditious 12 resolution of litigation always favors dismissal.” Yourish v. Cal. Amplifier, 191 F.3d 983, 13 990 (9th Cir. 1999). In this case, Johnson’s inaction has undermined expeditious 14 resolution. It has been approximately seven months since Johnson initiated this action and 15 four months since a summons issued, yet there has been no demonstration by Johnson that 16 the adverse party was properly served. The Court’s attempt to prompt Johnson to complete 17 this step has been met with silence. The Court cannot await indefinitely Johnson’s response 18 to the Court’s directive to file a proof of service. Thus, the Court finds that this factor 19 weighs in favor of dismissal. 20 Court’s Need to Manage its Docket: A district court is best positioned to determine 21 whether the delay in a particular case interferes with docket management and the public 22 interest. Ash v. Cuetkov, 739 F.2d 493, 496 (9th Cir. 1984). The Court finds that Johnson’s 23 failure to complete the fundamental step of showing proof of service—despite the Court’s 24 Order to Show Cause—has resulted in a continued delay in the prosecution of this case and 25 has “impermissibly allowed [P]laintiff to control the pace of the docket rather than the 26 [C]ourt.” See Smith v. Cty. of Riverside Sheriff Dep’t, No. ED CV 17-1969 DSF (SP), 2019 27 WL 7865170, at *3 (C.D. Cal. Nov. 18, 2019) (citing Pagtalunan, 291 F.3d at 642 (“It is 28 1 incumbent on the Court to manage its docket without being subject to routine 2 noncompliance of litigants.”)). Consequently , this factor weighs in favor of dismissal. 3 Prejudice to Defendant: “To prove prejudice, a defendant must establish that [a] 4 plaintiff’s actions impaired defendant’s ability to proceed to trial or threatened to interfere 5 with the rightful decision of the case.” Pagtalunan, 291 F.3d at 642 (citing Malone v. U.S. 6 Postal Serv., 833 F.2d 128, 131 (9th Cir. 1987)). “The pendency of the lawsuit is not 7 sufficiently prejudicial itself to warrant dismissal.” Yourish, 191 F.3d at 991; accord Ash, 8 739 F.2d at 496. However, “even in the absence of a showing of actual prejudice to the 9 defendant,” prejudice is presumed from unreasonable delay. In re Eisen, 31 F.3d 1447, 10 1552–53 (9th Cir. 1994); see also Anderson v. Air W., Inc., 542 F.2d 522, 524 (9th Cir. 11 1976) (“The law presumes injury from unreasonable delay.”). 12 “Whether prejudice is sufficient to support an order of dismissal is in part judged 13 with reference to the strength of the plaintiff’s excuse for default.” Malone, 833 F.2d at 14 131. Johnson did not respond to the Order to Show Cause, thus, his reasons for failing to 15 prosecute are unknown. See Garcia v. Fed. Bureau of Prisons, No. 5:19-CV-00008-PSG- 16 MAA, 2019 WL 6040412, at *4 (C.D. Cal. Oct. 21, 2019) (Report & Recommendation), 17 adopted, 2019 WL 6039943 (C.D. Cal. Nov. 12, 2019). Because the presumption of 18 prejudice arises from a plaintiff’s unexplained failure to prosecute, the third factor favors 19 dismissal. See id. at *4 (citing Laurino v. Syringa Gen. Hosp., 279 F.3d 750, 753 (9th Cir. 20 2002)). 21 Public Policy: Public policy always favors disposition of cases on the merits. 22 Pagtalunan, 291 F.3d at 643. Thus, the Court recognizes that this factor weighs against 23 dismissal. 24 Availability of Less Drastic Alternatives: In assessing this factor, the Court 25 considers whether alternatives less drastic than dismissal are feasible given the 26 circumstances of the case. In re Eisen, 31 F.3d at 1455. “[A] district court’s warning to a 27 party that [her] failure to obey the court’s order will result in dismissal can satisfy the 28 ‘consideration of alternatives’ requirement.” Ferdik, 963 F.2d at 1262. 1 When it issued its Order to Show Cause, this Court afforded Johnson with a less 2 || drastic alternative to dismissal. It did so by extending the 90-day period delineated under 3 || Rule 4(m) to show proof of service and warning Johnson of the consequences failure to do 4 would entail. As mentioned above, the Order to Show Cause was met with silence. 5 || After 123 days without Johnson’s filing of proof of service, this Court concludes that less 6 || drastic alternatives to dismissal are not available in these circumstances. 7 On balance, four out of five factors weigh in favor of dismissal. Accordingly, the 8 ||Court exercises its inherent authority to dismiss the Complaint without prejudice. See 9 || O’Brien v. Visa USA, Inc., 225 F. App’x 677, 678 (9th Cir. 2007) (affirming dismissal for 10 failure to prosecute where plaintiff “did not establish that he served process on any 11 || defendant within” the time period prescribed in Rule 4(m)); Shakar R. v. Saul, No. 5:19- 12 || CV-01716 FMO (ADS), 2020 WL 2319877, at *1 (C.D. Cal. May 11, 2020) (dismissing 13 || for failure to file a proof of service or comply with an OSC requiring the same). 14 Accordingly, the Court DISMISSES WITHOUT PREJUDICE this civil action in 15 entirety based on Johnson’s failure to prosecute pursuant to Fed. R. Civ. P. 41(b) and 16 || his failure to comply with this Court’s Order to Show Cause. The Court Clerk is directed 17 close this case. 18 IT IS SO ORDERED. 19 || DATED: March 7, 2023 ( itl A (Liphan 6 20 United States District Judge 21 22 23 24 25 26 27 28