1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL RICHARD KEAVNEY, Case No. 20-cv-1443-MMA (MSB) BOOKING #17104761, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILURE TO vs. PROSECUTE IN COMPLIANCE 14 WITH COURT ORDER DR. JOHN/JANE DOE, 15 REQUIRING AMENDMENT Defendant. 16 17 18 19 On July 27, 2020, Plaintiff Michael Richard Keavney (“Plaintiff”), while 20 incarcerated as a pretrial detainee, filed this civil rights action pursuant to 42 U.S.C. 21 § 1983. See Doc. No. 1. Plaintiff alleges that while housed at the San Diego County Jail 22 in 2018, a doctor ordered physical therapy to address pain and limited mobility in his 23 shoulder and ankle, but that the physical therapy never took place and he was unable to 24 resolve the issue through administrative grievance procedures. See id. at 2–3. 25 On September 28, 2020, the Court denied Plaintiff’s motion to proceed in forma 26 pauperis for failure to include the required financial documents. See Doc. No. 4. 27 Plaintiff resubmitted his motion twice, see Doc. Nos. 5, 7, and on December 11, 2020, the 28 Court granted him leave to proceed in forma pauperis. See Doc. No. 8. The Court 1 screened the Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) and 2 dismissed it with leave to amend because Plaintiff failed to allege that any Defendant 3 named in the Complaint caused the alleged constitutional violation. See id. at 4–8. 4 Plaintiff filed a First Amended Complaint (“FAC”) on January 25, 2021. See Doc. 5 No. 9. He claims he injured his shoulder and ankle in a fall at the San Diego County Jail 6 in May 2018. See id. at 3. He further alleges that he was seen by jail doctors over the 7 next several months and was referred to an orthopedic specialist who ordered 8 rehabilitation. See id. According to Plaintiff, despite two doctors eventually 9 recommending physical therapy twice weekly, he was sent to only one therapy session. 10 See id. Plaintiff claims that Defendant Dr. John or Jane Doe—the doctor who “makes 11 final decisions for the medical department at the San Diego County Jail,” and the only 12 Defendant named in the FAC—“made a conscious decision in January of 2019 to not 13 follow doctors’ orders to provide physical therapy to Plaintiff,” which caused his 14 condition to worsen, and that he was unable to resolve the issue through the inmate 15 grievance procedures. Id. at 4–5. 16 On May 5, 2021, the Court screened the FAC and found it did not state a claim 17 against Defendant Dr. Doe in his or her official capacity or for denial of administrative 18 grievances or a claim, but that the allegations in the FAC with respect to denial of 19 medical care were sufficient to survive the “low threshold” for stating a claim to pass 20 initial screening. See Doc. No. 10 at 5–6. However, the Court found that Plaintiff’s 21 failure to identify a Defendant by name, and instead his use of Doe in identifying the sole 22 Defendant in the FAC, precluded the Court from ordering the United States Marshal to 23 serve the Summons and FAC. See id. at 6–7. The Court therefore dismissed this action 24 without prejudice and granted Plaintiff sixty days—on or before July 6, 2021—to file a 25 Second Amended Complaint and identify the Doe Defendant by name. See id. at 7. The 26 Court informed Plaintiff of possible procedures and tools for identifying the Doe 27 Defendant, including reviewing his medical records for the name of the doctor and if 28 unsuccessful moving the Court to issue a subpoena duces tecum pursuant to Fed. R. Civ. 1 P. 45 for jail records which might identify the doctor. See id. at 7. Plaintiff was sent 2 blank copies of the Court’s amended complaint form and Form AO 88B “Subpoena to 3 Produce Documents, Information, or Objects” for his use in amending and/or submitting 4 a Rule 45 motion. See id. at 8. Plaintiff was instructed that if he failed to amend on or 5 before July 6, 2021, it would result in the dismissal of this action based on his failure to 6 prosecute in compliance with a court order requiring amendment. See id. (citing Lira v. 7 Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of 8 the opportunity to fix his complaint, a district court may convert the dismissal of the 9 complaint into dismissal of the entire action.”)). 10 This Court has discretion to sua sponte dismiss a case for lack of prosecution or 11 failure to comply with a court order. See Henderson v. Duncan, 779 F.2d 1421, 1423 12 (9th Cir. 1986); see also Fed. R. Civ. P. 41(b) (providing for involuntary dismissal for 13 failure to prosecute or comply with the federal rules or court order). “The failure of the 14 plaintiff eventually to respond to the court’s ultimatum–either by amending the complaint 15 or by indicating to the court that [he] will not do so–is properly met with the sanction of a 16 Rule 41(b) dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). “In 17 determining whether to dismiss a claim for failure to prosecute or failure to comply with 18 a court order, the Court must weigh the following factors: (1) the public’s interest in 19 expeditious resolution of litigation; (2) the Court’s need to manage its docket; (3) the risk 20 of prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and 21 (5) the public policy favoring disposition of cases on their merits.” Pagtalunan v. 22 Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 23 1260–61 (9th Cir. 1992)). 24 The Court informed Plaintiff that he must file an amended complaint identifying 25 the Doe Defendant by name and it has provided him information on how to do so. Yet 26 nearly four months have elapsed since the Court’s May 5, 2021 Order and Plaintiff has 27 not amended in compliance with this Court’s Order or otherwise contacted the Court. 28 Accordingly, factors one, two, and four weigh in favor of dismissal. See Yourish v. 1 || California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (“The public’s interest in 2 expeditious resolution of litigation always favors dismissal.”); Pagtalunan, 291 F.3d at 3 || 642 (“The trial judge is in the best position to determine whether the delay in a particular 4 interferes with the docket management and the public interest.”); Nevijel v. North 5 || Coast Life Insurance Co., 651 F.2d 671, 674 (9th Cir. 1981) (a court is not required to 6 || exhaust all alternatives prior to dismissal). Moreover, the fifth factor does not weigh 7 against dismissal. See In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 8 1217, 1227 (9th Cir. 2006) (the public policy favoring disposition on the merits does not 9 || weigh against dismissal where plaintiffs “conduct impedes progress in that direction.”) 10 || Only the third factor does not weigh in favor of dismissal.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL RICHARD KEAVNEY, Case No. 20-cv-1443-MMA (MSB) BOOKING #17104761, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILURE TO vs. PROSECUTE IN COMPLIANCE 14 WITH COURT ORDER DR. JOHN/JANE DOE, 15 REQUIRING AMENDMENT Defendant. 16 17 18 19 On July 27, 2020, Plaintiff Michael Richard Keavney (“Plaintiff”), while 20 incarcerated as a pretrial detainee, filed this civil rights action pursuant to 42 U.S.C. 21 § 1983. See Doc. No. 1. Plaintiff alleges that while housed at the San Diego County Jail 22 in 2018, a doctor ordered physical therapy to address pain and limited mobility in his 23 shoulder and ankle, but that the physical therapy never took place and he was unable to 24 resolve the issue through administrative grievance procedures. See id. at 2–3. 25 On September 28, 2020, the Court denied Plaintiff’s motion to proceed in forma 26 pauperis for failure to include the required financial documents. See Doc. No. 4. 27 Plaintiff resubmitted his motion twice, see Doc. Nos. 5, 7, and on December 11, 2020, the 28 Court granted him leave to proceed in forma pauperis. See Doc. No. 8. The Court 1 screened the Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1) and 2 dismissed it with leave to amend because Plaintiff failed to allege that any Defendant 3 named in the Complaint caused the alleged constitutional violation. See id. at 4–8. 4 Plaintiff filed a First Amended Complaint (“FAC”) on January 25, 2021. See Doc. 5 No. 9. He claims he injured his shoulder and ankle in a fall at the San Diego County Jail 6 in May 2018. See id. at 3. He further alleges that he was seen by jail doctors over the 7 next several months and was referred to an orthopedic specialist who ordered 8 rehabilitation. See id. According to Plaintiff, despite two doctors eventually 9 recommending physical therapy twice weekly, he was sent to only one therapy session. 10 See id. Plaintiff claims that Defendant Dr. John or Jane Doe—the doctor who “makes 11 final decisions for the medical department at the San Diego County Jail,” and the only 12 Defendant named in the FAC—“made a conscious decision in January of 2019 to not 13 follow doctors’ orders to provide physical therapy to Plaintiff,” which caused his 14 condition to worsen, and that he was unable to resolve the issue through the inmate 15 grievance procedures. Id. at 4–5. 16 On May 5, 2021, the Court screened the FAC and found it did not state a claim 17 against Defendant Dr. Doe in his or her official capacity or for denial of administrative 18 grievances or a claim, but that the allegations in the FAC with respect to denial of 19 medical care were sufficient to survive the “low threshold” for stating a claim to pass 20 initial screening. See Doc. No. 10 at 5–6. However, the Court found that Plaintiff’s 21 failure to identify a Defendant by name, and instead his use of Doe in identifying the sole 22 Defendant in the FAC, precluded the Court from ordering the United States Marshal to 23 serve the Summons and FAC. See id. at 6–7. The Court therefore dismissed this action 24 without prejudice and granted Plaintiff sixty days—on or before July 6, 2021—to file a 25 Second Amended Complaint and identify the Doe Defendant by name. See id. at 7. The 26 Court informed Plaintiff of possible procedures and tools for identifying the Doe 27 Defendant, including reviewing his medical records for the name of the doctor and if 28 unsuccessful moving the Court to issue a subpoena duces tecum pursuant to Fed. R. Civ. 1 P. 45 for jail records which might identify the doctor. See id. at 7. Plaintiff was sent 2 blank copies of the Court’s amended complaint form and Form AO 88B “Subpoena to 3 Produce Documents, Information, or Objects” for his use in amending and/or submitting 4 a Rule 45 motion. See id. at 8. Plaintiff was instructed that if he failed to amend on or 5 before July 6, 2021, it would result in the dismissal of this action based on his failure to 6 prosecute in compliance with a court order requiring amendment. See id. (citing Lira v. 7 Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of 8 the opportunity to fix his complaint, a district court may convert the dismissal of the 9 complaint into dismissal of the entire action.”)). 10 This Court has discretion to sua sponte dismiss a case for lack of prosecution or 11 failure to comply with a court order. See Henderson v. Duncan, 779 F.2d 1421, 1423 12 (9th Cir. 1986); see also Fed. R. Civ. P. 41(b) (providing for involuntary dismissal for 13 failure to prosecute or comply with the federal rules or court order). “The failure of the 14 plaintiff eventually to respond to the court’s ultimatum–either by amending the complaint 15 or by indicating to the court that [he] will not do so–is properly met with the sanction of a 16 Rule 41(b) dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). “In 17 determining whether to dismiss a claim for failure to prosecute or failure to comply with 18 a court order, the Court must weigh the following factors: (1) the public’s interest in 19 expeditious resolution of litigation; (2) the Court’s need to manage its docket; (3) the risk 20 of prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and 21 (5) the public policy favoring disposition of cases on their merits.” Pagtalunan v. 22 Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 23 1260–61 (9th Cir. 1992)). 24 The Court informed Plaintiff that he must file an amended complaint identifying 25 the Doe Defendant by name and it has provided him information on how to do so. Yet 26 nearly four months have elapsed since the Court’s May 5, 2021 Order and Plaintiff has 27 not amended in compliance with this Court’s Order or otherwise contacted the Court. 28 Accordingly, factors one, two, and four weigh in favor of dismissal. See Yourish v. 1 || California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (“The public’s interest in 2 expeditious resolution of litigation always favors dismissal.”); Pagtalunan, 291 F.3d at 3 || 642 (“The trial judge is in the best position to determine whether the delay in a particular 4 interferes with the docket management and the public interest.”); Nevijel v. North 5 || Coast Life Insurance Co., 651 F.2d 671, 674 (9th Cir. 1981) (a court is not required to 6 || exhaust all alternatives prior to dismissal). Moreover, the fifth factor does not weigh 7 against dismissal. See In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 8 1217, 1227 (9th Cir. 2006) (the public policy favoring disposition on the merits does not 9 || weigh against dismissal where plaintiffs “conduct impedes progress in that direction.”) 10 || Only the third factor does not weigh in favor of dismissal. See Pagralunan, 291 F.3d at 11 (where defendants have not appeared, “[w]e have previously recognized that 12 || pendency of a lawsuit is not sufficiently prejudicial in and of itself to warrant dismissal’’). 13 || Weighing these factors, the Court finds dismissal is appropriate. See Hernandez v. City 14 || of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (“we may affirm a dismissal where at 15 four factors support dismissal or where at least three factors ‘strongly’ support 16 || dismissal’) (quoting Ferdik, 963 F.2d at 1263) (internal citation omitted). 17 CONCLUSION 18 Accordingly, the Court DISMISSES this action without prejudice based upon 19 || Plaintiff's failure to prosecute by amending his FAC to identify a Defendant by name so 20 to permit service of the Summons and FAC as required by Court’s May 5, 2021 Order. 21 || The Court further DIRECTS the Clerk of Court to enter final judgment accordingly and 22 || close this case. 23 IT IS SO ORDERED. 24 Dated: August 30, 2021 25 BWMiiduh -£ hipllr 26 HON. MICHAEL M. ANELLO 07 United States District Judge 28 4 An TAAD RARTA □□□□□□□□□