Kelvin X. Singleton v. S. Gates

Opinion

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA KELVIN X. SINGLETON, Case No. 2:19-cv-08908-RGK-JC Plaintiff, v. ORDER DISMISSING ACTION S. GATES, et al., Defendants. On October 16, 2019, plaintiff Kelvin X. Singleton, who is in state custody, is proceeding pro se, and has been granted leave to proceed without prepayment of the filing fee, filed a Civil Rights Complaint (“Original Complaint”) pursuant to 42 U.S.C. § 1983 (“Section 1983”), against the following defendants at California State Prison – Los Angeles County (“CSP-LAC”) in their individual and official capacities: (1) S. Gates, Chief of Health Care Correspondence and Appeals Branch; (2) M. Lewis, Chief Physician and Surgeon; (3) B. Ramos, Chief Medical Executive; (4) A. Galstian (erroneously sued as A. Galstain), Chief Executive Officer; and (5) M. Nawaz, Primary Care Physician. (Docket No. 1). On September 4, 2020, the Court granted defendant’s Motion to Dismiss the Original Complaint, but afforded plaintiff leave to amend. (Docket No. 53). On September 25, 2020, plaintiff filed a First Amended Complaint (“First Amended Complaint” or “FAC”), asserting Eighth Amendment claims against the same five defendants in their individual and official capacities. (Docket No. 54). On July 2, 2021, this Court granted in part defendant’s Motion to Dismiss the First Amended Complaint and dismissed the First Amended Complaint as against defendants in their official capacities with leave to amend (“July Order”). (Docket No. 69). The July Order directed plaintiff within twenty (20) days (i.e., by July 22, 2021), to do one of the following: (1) file a Second Amended Complaint; (2) file a Notice of Intent to Proceed Solely Against Defendants in Their Individual Capacities; or (3) file a Notice of Dismissal. (Docket No. 69). The July Order expressly cautioned plaintiff in bold-faced print that his failure timely to file a Second Amended Complaint, a Notice of Intent to Proceed Solely Against Defendants in Their Individual Capacities, or a Notice of Dismissal may result in the dismissal of this action with or without prejudice for failure diligently to prosecute and/or for failure to comply with the July Order. The foregoing July 22, 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 July Order. As discussed below, this action is dismissed due to plaintiff’s unreasonable failure to prosecute and his failure to comply with the July Order. 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 2 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 was erroneous. Yourish v. California Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (citing id.). 24] 1. DISCUSSION AND ORDER First, the July Order was not erroneous and adequately and properly notified plaintiff of the deficiencies in the official capacity claims in the First Amended Complaint and afforded him an opportunity to amend effectively. ///

/// Second, dismissal is appropriate based upon plaintiff’s failure to comply with the July Order and the failure to prosecute. The Court has considered the five factor 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 official capacity claims in the First Amended Complaint and has been given the opportunity to amend them, to dismiss the First Amended Complaint, or to notify the Court that he wishes to stand on the remaining individual capacity claims in the First Amended Complaint. He 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 his failure to prosecute and his failure to comply with the July 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). /// /// /// /// 5 IT IS THEREFORE ORDERED that this action is dismissed based upon plaintiff’s unreasonable failure to prosecute and his failure to comply with the July Order – each of which constitutes an independent and adequate basis to support dismissal. DATED: August 24, 2021 ___________________________________ UNITED STATES DISTRICT JUDGE 6