Kenneth Adrian Fuller v. Gavin Newsom

• Court: District Court, C.D. California
• Decided: June 15, 2022
• Docket: 2:21-cv-07946
• Status: Unknown

Opinion

Case 2:21-cv-07946-SVW-MAA Document 18 Filed 06/15/22 Page 1 of 9 Page ID #:101

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 KENNETH ADRIAN FULLER et al, Case No. 2:21-cv-07946-SVW (MAA)

12 Plaintiffs, ORDER OF DISMISSAL

13 v. 14 GAVIN NEWSOM et al., 15 Defendants. 1 16 7

18 I. SUMMARY OF PROCEEDINGS 19 On October 4, 2021, Plaintiffs Kenneth Fuller, Layn Allen Banks, Brian 20 Victor Andres, Axel Garcia, Pierce R. Baylor, Manuel Taylor Resendiz, Trevyn 21 Lamison, and Anthony Stevens (each, a “Plaintiff,” and collectively, “Plaintiffs”), 22 proceeding pro se, filed a Complaint alleging violations of their civil rights. 23 (Compl., ECF No. 1.) Plaintiff Fuller paid the $402 filing fee on October 28, 2021. 24 (ECF No. 5.) 25 On November 11, 2021, the Court issued a Case Management Order 26 (“CMO”), which, inter alia, warned Plaintiffs that, pursuant to Federal Rule of 27 Civil Procedure 4(m), service of the summons and Complaint had to be made on all 28 Defendants within ninety days of filing the Complaint. (CMO 2, ECF No. 7.) Case 2:21-cv-07946-SVW-MAA Document 18 Filed 06/15/22 Page 2 of 9 Page ID #:102

1 On November 15 and December 1, 2021, the Court received undeliverable 2 returned mail from Plaintiff Resendiz. (ECF Nos. 8–10.) On January 5, 2022, the 3 Court received undeliverable returned mail from Plaintiff Lamison. (ECF No. 11.) 4 On January 19, 2022, the Court ordered Plaintiffs to show cause no later than 5 February 18, 2022 why the action should not be dismissed for failure to comply 6 with Rule 4(m) (“OSC-1”). (OSC-1, ECF No. 12.) On February 23, 2022, Plaintiff 7 Fuller filed a Response to OSC-1 (“Response”). (Resp., ECF No. 13.) 8 In light of Plaintiff Fuller’s Response, it came to the Court’s attention that 9 Plaintiff Fuller was incarcerated. On March 3, 2022, the Court issued an Order 10 stating that: the claims in the Complaint did not concern prison conditions and pro 11 se plaintiffs could not bring claims on behalf of other individuals; district courts 12 within the Ninth Circuit did not allow multiple inmate pro se plaintiffs—or inmate 13 pro se plaintiffs with nonincarcerated pro se plaintiffs—to bring a single lawsuit 14 due to the procedural problems that cause delay and confusion; to the extent the 15 Plaintiffs wished to sever their own claims into separate lawsuits, each lawsuit 16 would require a separate $402 filing fee or approval to proceed in forma pauperis; 17 and the Court is statutorily-required to conduct a preliminary screening of any civil 18 action brought by a prisoner or in which a plaintiff proceeds in forma pauperis 19 (“Order” 1–2, ECF No. 14.) The Court struck the CMO and OSC from the docket 20 and ordered each Plaintiff to, no later than April 4, 2022: (a) advise the Court that 21 he or she would proceed with this lawsuit; (b) file a Notice of Dismissal; or 22 (c) advise the Court that he or she wished to sever his or her claims into a separate 23 lawsuit. (Id. at 2–3.) The Court advised that the $402 filing fee would remain with 24 this lawsuit, and if a Plaintiff chose to sever his or her claims, each separate action 25 would require a separate $402 filing fee or the Court’s approval to proceed in forma 26 pauperis. (Id. at 3.) The Court warned that “[f]ailure to notify the Court of how 27 each Plaintiff would like to proceed w[ould] result in a recommendation that 28 his or her claims be dismissed.” (Id.) The Court also “cautioned that failure to 2 Case 2:21-cv-07946-SVW-MAA Document 18 Filed 06/15/22 Page 3 of 9 Page ID #:103

1 respond to this order may result in a recommendation that the lawsuit be 2 dismissed without prejudice for failure to prosecute and/or failure to comply 3 with a court order pursuant to Federal Rule of Civil Procedure 41(b). See C.D. 4 Cal. L.R. 41-1.” (Id.) 5 On March 22, 2022, the Order addressed to Plaintiff Fuller was returned to 6 the Court as undeliverable. (ECF No. 15.) On April 8, 022, the Order addressed to 7 Plaintiff Lamison was returned to the Court as undeliverable. (ECF No. 16.) 8 On April 19, 2022, in the absence of a response to the Order, the Court issued 9 an Order to Show Cause (“OSC-2”), ordering Plaintiffs to show cause by May 19, 10 2022 why the Court should not recommend that the lawsuit be dismissed for failure 11 to comply with a court order. (OSC-2, ECF No. 17.) The OSC-2 stated that if 12 every Plaintiff filed a response to the Order on or before that date, the OSC-2 would 13 be discharged; and if some but not all of the Plaintiffs responded, the OSC-2 would 14 be discharged as to such responding Plaintiffs but not against the non-responding 15 Plaintiffs. (Id.) The OSC-2 “cautioned that failure to respond to this order may 16 result in a recommendation that the lawsuit be dismissed without prejudice for 17 failure to prosecute and/or failure to comply with a court order pursuant to 18 Federal Rule of Civil Procedure 41(b). See C.D. Cal. L.R. 41-1.” (Id.) 19 To date, no Plaintiff has responded to either the Order or OSC-2, and 20 Plaintiffs Fuller, Resendiz, and Lamison have not updated their addresses with the 21 Court. Indeed, Plaintiff Fuller has not communicated with the Court since February 22 23, 2022, and the other Plaintiffs have not communicated with the Court since filing 23 the Complaint on October 4, 2021. 24 25 II. LEGAL STANDARD 26 Central District of California Local Rule 41-6 states:

27 A party proceeding pro se must keep the Court and all 28 other parties informed of the party’s current address as 3 Case 2:21-cv-07946-SVW-MAA Document 18 Filed 06/15/22 Page 4 of 9 Page ID #:104

1 well as any telephone number and email address. If a 2 Court order or other mail served on a pro se plaintiff at his address of record is returned by the Postal Service as 3 undeliverable and the pro se party has not filed a notice of 4 change of address within 14 days of the service date of the order or other Court document, the Court may dismiss the 5 action with or without prejudice for failure to prosecute. 6 C.D. Cal. L.R. 41-6. 7 District courts may dismiss cases sua sponte for failure to prosecute or for 8 failure to comply with a court order under Federal Rule of Civil Procedure 41(b). 9 Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005); 10 see also Link v. Wabash R.R. Co., 370 U.S. 626, 629–30 (1962) (holding that the 11 court has “inherent power” to dismiss cases sua sponte for lack of prosecution). 12 Unless the Court states otherwise, a dismissal under Rule 41(b) operates as an 13 adjudication on the merits. Fed. R. Civ. P. 41(b). “Dismissal is a harsh penalty and 14 is to be imposed only in extreme circumstances.” In re: Phenylpropanolamine 15 (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone v. 16 USPS, 833 F.2d 128, 130 (9th Cir. 1987)). 17 “A Rule 41(b) dismissal ‘must be supported by a showing of unreasonable 18 delay.’” Omstead v. Dell, 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson 19 v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). In addition, the court must weigh 20 the following factors in determining whether a Rule 41(b) dismissal is warranted: 21 “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 22 to manage its docket; (3) the risk of prejudice to the defendants/respondents; (4) the 23 availability of less drastic alternatives; and (5) the public policy favoring disposition 24 of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). 25 The Ninth Circuit will “affirm a dismissal where at least four factors support 26 dismissal, or where at least three factors strongly support dismissal.” Dreith v. Nu 27 Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011) (quoting Yourish v. Cal. Amplifier, 28 191 F.3d 983, 990 (9th Cir. 1999)). Finally, “in order to warrant a sanction of 4 Case 2:21-cv-07946-SVW-MAA Document 18 Filed 06/15/22 Page 5 of 9 Page ID #:105

1 dismissal, the party’s violations of the court’s orders must be due to wilfulness or 2 bad faith.” Id. 3 4 III. ANALYSIS 5 A. The Public’s Interest in Expeditious Resolution and the Court’s 6 Need to Manage Its Docket 7 The first and second factors (the public’s interest in expeditious resolution of 8 litigation and the Court’s need to manage its docket)1 weigh in favor of dismissal. 9 “Orderly and expeditious resolution of disputes is of great importance to the rule of 10 law.” In re: Phenylpropanolamine, 460 F.3d at 1227. “The public’s interest in 11 expeditious resolution of litigation always favors dismissal.” Pagtalunan, 291 F.3d 12 at 642 (quoting Yourish, 191 F.3d at 990). In addition, district courts “have an 13 inherent power to control their dockets,” In re: Phenylpropanolamine, 460 F.3d at 14 1227 (quoting Thompson v. Hous. Auth. of Los Angeles, 782 F.2d 829, 831 (9th Cir. 15 1986)), and “are best suited to determine when delay in a particular case interferes 16 with docket management and the public interest.” Yourish, 191 F.3d at 990 17 (quoting Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984)). 18 Plaintiffs have failed to respond to the Order or OSC-2; Plaintiffs Fuller, 19 Resendiz, and Lamison have not updated their addresses with the Court; Plaintiff 20 Fuller has not participated in this lawsuit since February 23, 2022; and the other 21 Plaintiffs have not participated in this lawsuit since October 4, 2021. The Court 22 concludes that Plaintiffs’ inaction and lack of communication with the Court 23 constitute willful unreasonable delay. See, e.g., Thomas v. Maricopa Cnty. Jail, 24 265 F. App’x. 606, 607 (9th Cir. 2008) (holding that district court did not abuse its 25 discretion by dismissing pro se prisoner lawsuit for failure to respond to a court 26 order for almost three months). Plaintiffs’ noncompliance also interferes with the 27 1 The first two factors are usually reviewed together “to determine if there is an 28 unreasonable delay.” In re Eisen, 31 F.3d 1447, 1452 (9th Cir. 1994). 5 Case 2:21-cv-07946-SVW-MAA Document 18 Filed 06/15/22 Page 6 of 9 Page ID #:106

1 public’s interest in the expeditious resolution of this litigation and hinders the 2 Court’s ability to manage its docket. See In re: Phenylpropanolamine, 460 F.3d at 3 1227 (“[The Ninth Circuit] defer[s] to the district court’s judgment about when a 4 delay becomes unreasonable ‘because it is in the best position to determine what 5 period of delay can be endured before its docket becomes unmanageable.”) (quoting 6 In re Eisen, 31 F.3d at 1451)). The first and second factors favor dismissal. 7 8 B. Risk of Prejudice to Defendants 9 The third factor (risk of prejudice to the defendants) also weighs in favor of 10 dismissal. “A defendant suffers prejudice if the plaintiff’s actions impair the 11 defendant’s ability to go to trial or threaten to interfere with the rightful decision of 12 the case.” In re: Phenylpropanolamine, 460 F.3d at 1227 (quoting Adriana Int’l 13 Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990)). “The law also presumes 14 prejudice from unreasonable delay.” Id. The risk of prejudice to a defendant is 15 related to a plaintiff’s reason for failure to prosecute an action. Pagtalunan, 291 16 F.3d at 642. “Whether prejudice is sufficient to support an order of dismissal is in 17 part judged with reference to the strength of the plaintiff’s excuse for the default.” 18 Malone, 833 F.2d at 131. 19 Plaintiffs have refused to respond to the Order and OSC-2 without 20 explanation. As Plaintiffs Fuller, Resendiz, and Lamison have not updated their 21 addresses with the Court, the Court cannot ascertain their reason for failing to 22 prosecute this lawsuit or comply with Court orders. See Carey v. King, 856 F.2d 23 1439, 1441 (9th Cir. 1988) (“It would be absurd to require the district court to hold 24 a case in abeyance indefinitely just because it is unable, through the plaintiff’s own 25 fault, to contact the plaintiff to determine if his reasons for not prosecuting his 26 lawsuit are reasonable or not.”) As “a presumption of prejudice arises from the 27 plaintiff’s unexplained failure to prosecute,” the third factor favors dismissal. See 28 Hernandez v. City of El Monte, 138 F.3d 393, 400 (9th Cir. 1998). 6 Case 2:21-cv-07946-SVW-MAA Document 18 Filed 06/15/22 Page 7 of 9 Page ID #:107

1 C. Availability of Less Drastic Alternatives 2 The fourth factor (the availability of less drastic alternatives) also supports 3 dismissal. “The district court need not exhaust every sanction short of dismissal 4 before finally dismissing a case, but must explore possible and meaningful 5 alternatives.” Henderson, 779 F.2d at 1424. 6 The Court considered and implemented less drastic alternatives prior to 7 dismissal. The Court twice warned Plaintiffs that failure to respond to the Order 8 would result in a recommendation that the action be dismissed for failure to 9 prosecute and/or failure to comply with Court orders pursuant to Federal Rule of 10 Civil Procedure 41(b). (Order; OSC-2.) See In re: Phenylpropanolamine, 460 F.3d 11 at 1229 (“Warning that failure to obey a court order will result in dismissal can 12 itself meet the ‘consideration of alternatives’ requirement.”). The Court also 13 extended Plaintiffs’ deadline to respond to the Order from April 4, 2022 to May 19, 14 2022. (OSC-2.) See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) 15 (holding that the district court’s allowance of an additional thirty days for plaintiff 16 to file an amended complaint was an attempt at a less drastic sanction). As 17 Plaintiffs Fuller, Resendiz, and Lamison have not provided their updated addresses 18 to the Court, and it has been over eight months since the other Plaintiffs have 19 communicated with the Court, no alternatives to dismissal currently are available. 20 See Carey, 856 F.2d at 1441 (concluding that there was no less drastic sanction 21 available than dismissal where mail addressed to plaintiff was returned by the post 22 office as undeliverable and plaintiff did not provide updated address to court). The 23 fourth factor weighs in favor of dismissal. 24 25 D. Public Policy Favoring Disposition on the Merits 26 As to the fifth factor, “[p]ublic policy favors disposition of cases on the 27 merits.” Pagtalunan, 291 F.3d at 643. However, “a case that is stalled or 28 unreasonably delayed by a party’s failure to comply with deadlines . . . cannot move 7 Case 2:21-cv-07946-SVW-MAA Document 18 Filed 06/15/22 Page 8 of 9 Page ID #:108

1 toward resolution on the merits.” In re: Phenylpropanolamine, 460 F.3d at 1228. 2 Thus, “this factor lends little support to a party whose responsibility it is to move a 3 case towards disposition on the merits but whose conduct impedes progress in that 4 direction.” Id. (internal quotation marks omitted). The case has been stalled by 5 Plaintiffs’ failures to respond to the Order or OSC-2, or update their addresses with 6 the Court. Still, the public policy favoring the resolution of disputes on the merits is 7 strong and, under the circumstances, outweighs Plaintiffs’ noncompliance and 8 inaction. 9 10 E. Dismissal Without Prejudice 11 In summary, Plaintiffs’ failures to respond to the Order or OSC-2; the failure 12 of Plaintiffs Fuller, Resendiz, and Lamison to update their addresses with the Court; 13 Plaintiff Fuller’s lack of communication with the Court since February 23, 2022; 14 and the other Plaintiffs’ failures to participate in the lawsuit since October 4, 2021 15 constitute willful unreasonable delay. Four of the Rule 41(b) dismissal factors 16 weigh in favor of dismissal, whereas only one factor weighs against dismissal. 17 “While the public policy favoring disposition of cases on their merits weighs 18 against [dismissal], that single factor is not enough to preclude imposition of this 19 sanction when the other four factors weigh in its favor.” Rio Props., Inc. v. Rio Int’l 20 Interlink, 284 F.3d 1007, 1022 (9th Cir. 2002). The Court concludes that dismissal 21 of this action for failure to prosecute and to comply with Court orders is warranted, 22 but, consistent with Rule 41(b) and this Court’s exercise of its discretion, the 23 dismissal is without prejudice. 24 /// 25 /// 26 /// 27 /// 28 /// 8 Case 2°21-cv-07946-SVW-MAA Document18 Filed 06/15/22 Page9of9 Page ID #:109

1 || IV. CONCLUSION 2 IT THEREFORE IS ORDERED that this lawsuit is DISMISSED without 3 || prejudice. No further filings shall be accepted under this case number. 5 \pP~ 6 || DATED: __June 15, 2022 Levy 7 STEPHEN V. WILSON UNITED STATES DISTRICT JUDGE 8 || Presented by: 9 10 hye as — RIA A. AUDERO 11 | UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28