Little v. Cincinnati State Technical and Community College

• Court: District Court, D. Montana
• Decided: May 2, 2023
• Docket: 6:23-cv-00010
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA HELENA DIVISION

LENNY EUGENE LITTLE, Cause No. CV 23-10-H-BMM

Plaintiff,

vs. ORDER

CINCINNATI STATE TECHNICAL AND COMMUNITY COLLEGE,

Defendants.

On January 30, 2023, Plaintiff Lenny Eugene Little filed a complaint alleging Defendant violated his rights. (See generally Doc. 2.) On March 30, 2023, Magistrate Judge DeSoto informed Mr. Little about the deficiencies in his Complaint, explaining it was subject to dismissal, and provided him an opportunity to file an Amended Complaint. (Doc. 9.) Mr. Little was given 30 days within which to file an Amended Complaint if he wished to proceed with this matter. (Id. at 6-7.) Mr. Little was informed that if he failed to comply, the matter would be dismissed without further notice. (Id. at 7.) Mr. Little has failed to file an Amended Complaint. Fed. R. Civ. P. 41(b) authorizes the Court to dismiss an action “[i]f the plaintiff fails to prosecute” the action or fails to comply with other Rules of the Court. See also Applied Underwriters v. Lichtenegger, 913 F. 3d 884, 889 (9th Cir. 2019)(citation omitted). A court may dismiss an action based on a party’s failure

to prosecute an action, obey a court order, or comply with the local rules. See Ferdik v. Bonzelet, 963 F. 2d 1258, 1260-61 (9th Cir. 1992)(dismissal for failure to comply with a court order to amend a complaint). The Court may dismiss a case

on its own without awaiting a motion. See Link v. Wabash Railroad Co., 370 U.S. 626, 633 (1962); Hells Canyon Preservation Council v. United States Forest Serv., 403 F. 3d 683, 689 (9th Cir. 2005). In determining whether a plaintiff’s failure to prosecute warrants dismissal

of the case, the Court must weigh the following five factors: “(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 the defendants; (4) the public policy favoring

disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.1986)). “The first two of these factors favor the imposition of sanctions in most cases, while the fourth factor cuts against

a default or dismissal sanction. Thus the key factors are prejudice and availability of lesser sanctions.” Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir.1990). “The public’s interest in expeditious resolution of litigation always favors

dismissal.” Yourish v. California Amplifier, 191 F. 3d 983, 990 (9th Cir. 1999). Mr. Little has failed to comply with this Court’s order directing him to file an Amended Complaint. This factor weighs in favor of dismissal.

Likewise, the second factor supports dismissal. “The trial judge is in the best position to determine whether the delay in a particular case interferes with docket management and the public interest.” Pagtalunan v. Galaza, 291 F. 3d 639 (9th Cir. 2002). The Court cannot manage its docket if Mr. Little refuses to comply

with the Court’s orders and deadlines. Mr. Little’s case has consumed judicial resources and time that could have been better spent on other matters. Therefore, this factor also favors dismissal.

The third factor requires the Court to weigh the risk of prejudice to the Respondent. A rebuttable presumption of prejudice to respondents arises when a petitioner unreasonably delays prosecution of an action. In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994). Nothing suggests that such a presumption is unwarranted

in this case. The Court has considered less drastic alternatives. Alternatives may include “allowing further amended complaints, allowing additional time, or insisting that

appellant associate experienced counsel.” Nevijel v. North Coast Life Insurance Co., 651 F. 2d 671, 674 (9th Cir. 1981). Although less drastic alternatives to dismissal should be considered, the Court is not required to exhaust all such

alternatives prior to dismissal. Id. Mr. Little was afforded an adequate amount of time in which to prepare and file his amended complaint. He did not do so. Further, Mr. Little was advised that his failure to obey the court’s order would

result in dismissal. Such a warning satisfies the considerations of the alternative requirement. See Ferdik, 963 F. 2d at 1262. Mr. Little had adequate warning that dismissal would result from his noncompliance. At this juncture, the Court can

envision no further alternatives to dismissal. The last factor weighs against dismissal because public policy favors disposition of cases on their merits. Hernandez v. City of El Monte, 138 F. 3d 393, 399 (9th Cir. 1998). But in light of the other four factors favoring dismissal, the

weight of this factor is slight. No further resources of the Court will be expended. This matter will be dismissed based upon Mr. Little’s failure to prosecute pursuant to Fed. F. Civ. P. 41(b).

Accordingly, the Court enters the following: ORDER 1. This matter is dismissed for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b).

2. The Clerk of Court is directed to close this matter and enter judgment in favor of Defendants pursuant to Rule 58 of the Federal Rules of Civil Procedure. 3. The Clerk of Court is directed to have the docket reflect that the Court

certifies pursuant to Rule 24(a)(3)(A) of the Federal Rules of Appellate Procedure that any appeal of this decision would not be taken in good faith. No reasonable

person could suppose an appeal would have merit. 4. The Clerk of Court is directed to have the docket reflect that this dismissal counts as a strike because the Complaint fails to state a claim upon which relief may be granted, pursuant to 28 U.S.C. § 1015(g). DATED this 2™ day of May, 2023.

~~) ( AS HV 4

Brian Morris, Chief District Judge United States District Court