Jones v. Peng

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WAYNE ELIJAH JONES, Case No. 21-cv-1912-MMA (BLM) INMATE #20902359, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILURE TO vs. PROSECUTE IN COMPLIANCE 14 WITH COURT ORDER P. PENG, et al., 15 Defendants. 16 17 18 19 On November 9, 2021, Plaintiff Wayne Elijah Jones, incarcerated at the Vista 20 Detention Facility in Vista, California, but subsequently transferred to the San Diego 21 County Jail, proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 22 accompanied by a motion to proceed in forma pauperis. Doc. Nos. 1, 2. After the Court 23 twice denied Plaintiff leave to proceed in forma pauperis for lack of adequate supporting 24 financial documentation, see Doc. Nos. 3, 6, Plaintiff provided the proper financial 25 documents on January 13, 2022, Doc. No. 8. 26 On January 28, 2022, the Court granted Plaintiff’s motion to proceed in forma 27 pauperis and screened the Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 28 1915A(b)(1). Doc. No. 11. The Court dismissed the Complaint for failure to state a 1 claim upon which relief may be granted, notified Plaintiff of the deficiencies of his 2 pleading, and granted leave to amend on or before March 14, 2022. Id. at 5–9. Plaintiff 3 was instructed that a failure to timely amend would result in a final order of dismissal of 4 this action. Id. at 9 (citing Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a 5 plaintiff does not take advantage of the opportunity to fix his complaint, a district court 6 may convert the dismissal of the complaint into dismissal of the entire action.”)). 7 Nearly two months have elapsed since the time to amend expired, and Plaintiff has 8 not amended in compliance with this Court’s Order or otherwise contacted the Court. 9 This Court has discretion to sua sponte dismiss a case for lack of prosecution or failure to 10 comply with a court order. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); 11 see also Fed. R. Civ. P. 41(b) (providing for involuntary dismissal for failure to prosecute 12 or comply with the federal rules or court order). “The failure of the plaintiff eventually to 13 respond to the court’s ultimatum–either by amending the complaint or by indicating to 14 the court that [he] will not do so–is properly met with the sanction of a Rule 41(b) 15 dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). 16 “In determining whether to dismiss a claim for failure to prosecute or failure to 17 comply with a court order, the Court must weigh the following factors: (1) the public’s 18 interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; 19 (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic 20 alternatives; and (5) the public policy favoring disposition of cases on their merits.” 21 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 22 F.2d 1258, 1260–61 (9th Cir. 1992)). Because the Court has informed Plaintiff of his 23 need to amend but he has failed to do so, factors one, two and four weigh in favor of 24 dismissal. See Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (“[T]he 25 public’s interest in expeditious resolution of litigation always favors dismissal.”); 26 Pagtalunan, 291 F.3d at 642 (“The trial judge is in the best position to determine whether 27 the delay in a particular case interferes with docket management and the public 28 interest.”); Nevijel v. North Coast Life Insurance Co., 651 F.2d 671, 674 (9th Cir. 1981) 1 ||(a court is not required to exhaust all alternatives prior to dismissal). Factor five does not 2 || weigh against dismissal. See In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 3 || F.3d 1217, 1227 (9th Cir. 2006) (the public policy favoring disposition on the merits does 4 ||not weigh against dismissal where plaintiffs “conduct impedes progress in that 5 || direction”) Only factor three does not weigh in favor of dismissal. See Pagtalunan, 291 6 || F.3d at 642 (where defendants have not appeared, “[w]e have previously recognized that 7 pendency of a lawsuit is not sufficiently prejudicial in and of itself to warrant dismissal’’) 8 Weighing these factors, the Court finds that a final judgment of dismissal is 9 appropriate. See Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (“We 10 || may affirm a dismissal where at least four factors support dismissal, or where at least 11 three factors ‘strongly’ support dismissal.’’) (internal citation omitted) (quoting Ferdik, 12 F.2d at 1263). 13 Accordingly, the Court DISMISSES this civil action without prejudice based on 14 || Plaintiff's failure to prosecute by amending his Complaint as required by Court’s January 15 2022, Order. The Court DIRECTS the Clerk of Court to enter a final judgment of 16 || dismissal and close the case. 17 IT ISSO ORDERED. 18 ||Dated: May 12, 2022 19 Mitek MM - {il bolls 20 HON. MICHAEL M. ANELLO 1 United States District Judge 22 23 24 25 26 27 28

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