Rickey Lewis McDonald v. Riverside County Sheriff Dept.

Opinion

1 2 3 4 5 6 7 10 11 RICKEY LEWIS MCDONALD, Case No. 5:20-cv-01181-MCS (MAA)

12 Plaintiff, ORDER OF DISMISSAL

13 v. 14 RIVERSIDE COUNTY SHERIFF 15 DEPT. et al.,

16 Defendants. 1 17 8

20 On June 10, 2020, Plaintiff Rickey Lewis McDonald (“Plaintiff”), proceeding 21 pro se, filed a Complaint alleging violations of his civil rights pursuant to 42 U.S.C. 22 § 1983. (Compl., ECF No. 1.) That same day, Plaintiff filed a Request to Proceed 23 In Forma Pauperis (ECF No. 2), which the Court granted on June 11, 2020 (ECF 24 No. 4). 25 On June 11, 2020, pursuant to the Congressionally-mandated screening of any 26 case in which a prisoner seeks redress from a governmental entity or officer or 27 employee of a governmental entity, or in which a plaintiff proceeds in forma 28 pauperis, the Court issued an Order dismissing the Complaint with leave to amend. 1 (ECF No. 5.) On June 19, 2020, the Court received Plaintiff’s First Amended 2 Complaint (ECF No. 7), which the Court screened and dismissed with leave to 3 amend on July 27, 2020 (ECF No. 9). On August 10, 2020, the Court received 4 Plaintiff’s Second Amended Complaint (ECF No. 10), which the Court screened and 5 dismissed with leave to amend on August 26, 2020 (ECF No. 11). The Court 6 received Plaintiff’s Third Amended Complaint (“TAC”) on October 14, 2020. (ECF 7 No. 13.) 8 On October 27, 2020, the Court issued a Memorandum Decision and Order 9 Dismissing Third Amended Complaint with Leave to Amend (“Order”). (Order, 10 ECF No. 14.) The Court ordered Plaintiff to, within thirty days of the Order, either 11 file a Fourth Amendment Complaint (“4AC”), or advise the Court that Plaintiff does 12 not intend to pursue this lawsuit further and will not file a 4AC. (Id. at 10.) The 13 Order “explicitly cautions Plaintiff that failure to timely file a 4AC, or timely 14 advise the Court that Plaintiff does not intend to file a 4AC, w[ould] result in a 15 recommendation that this action be dismissed for failure to prosecute and/or 16 failure to comply with court orders pursuant to Federal Rule of Civil Procedure 17 41(b).” (Id. at 11.) 18 On January 5, 2021, in the absence of a filed 4AC, the Court issued an Order 19 to Show Cause (“OSC”), ordering Plaintiff to show cause by February 4, 2021 why 20 the Court should not recommend that the case be dismissed for want of prosecution. 21 (OSC, ECF No. 15.) The OSC stated that if Plaintiff filed a 4AC or dismissed the 22 case before that date, then the OSC would be discharged. (Id.) The OSC “advised 23 that failure to comply with this order w[ould] result in a recommendation that 24 the lawsuit be dismissed for failure to prosecute and/or comply with court 25 orders. See Fed. R. Civ. P. 41(b); C.D. Cal. L.R. 41-1.” (Id.) 26 Plaintiff has failed to file a 4AC to date, and the Court has not received any 27 communication from Plaintiff since October 14, 2020. 28 /// 2 District courts may dismiss cases sua sponte for failure to prosecute or for 3 failure to comply with a court order under Federal Rule of Civil Procedure 41(b). 4 Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005); 5 see also Link v. Wabash R.R. Co., 370 U.S. 626, 629–30 (1962) (holding that the 6 court has “inherent power” to dismiss cases sua sponte for lack of prosecution). 7 Unless the Court states otherwise, a dismissal under Rule 41(b) operates as an 8 adjudication on the merits. Fed. R. Civ. P. 41(b). “Dismissal is a harsh penalty and 9 is to be imposed only in extreme circumstances.” In re: Phenylpropanolamine 10 (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone v. 11 USPS, 833 F.2d 128, 130 (9th Cir. 1987)). 12 “A Rule 41(b) dismissal ‘must be supported by a showing of unreasonable 13 delay.’” Omstead v. Dell, 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson 14 v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). In addition, the court must weigh 15 the following factors in determining whether a Rule 41(b) dismissal is warranted: 16 “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 17 to manage its docket; (3) the risk of prejudice to the defendants/respondents; (4) the 18 availability of less drastic alternatives; and (5) the public policy favoring disposition 19 of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). 20 The Ninth Circuit will “affirm a dismissal where at least four factors support 21 dismissal, or where at least three factors strongly support dismissal.” Dreith v. Nu 22 Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011) (quoting Yourish v. Cal. Amplifier, 23 191 F.3d 983, 990 (9th Cir. 1999)). Finally, “in order to warrant a sanction of 24 dismissal, the party’s violations of the court’s orders must be due to wilfulness or 25 bad faith.” Id. 26 /// 27 /// 28 /// 2 A. The Public’s Interest in Expeditious Resolution and the Court’s 3 Need to Manage Its Docket 4 The first and second factors (the public’s interest in expeditious resolution of 5 litigation and the Court’s need to manage its docket)1 strongly weigh in favor of 6 dismissal. “Orderly and expeditious resolution of disputes is of great importance to 7 the rule of law.” In re: Phenylpropanolamine, 460 F.3d at 1227. “The public’s 8 interest in expeditious resolution of litigation always favors dismissal.” Pagtalunan, 9 291 F.3d at 642 (quoting Yourish, 191 F.3d at 990). In addition, district courts “have 10 an inherent power to control their dockets,” In re: Phenylpropanolamine, 460 F.3d 11 at 1227 (quoting Thompson v. Hous. Auth. of Los Angeles, 782 F.2d 829, 831 (9th 12 Cir. 1986)), and “are best suited to determine when delay in a particular case 13 interferes with docket management and the public interest.” Yourish, 191 F.3d at 14 990 (quoting Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984)). 15 Plaintiff has failed to file a 4AC—which is now over three months past due 16 from its original November 30, 2020 deadline—and the Court has not received any 17 communication from Plaintiff since October 14, 2020. The Court concludes that 18 Plaintiff’s inaction and lack of communication with the Court constitute willful 19 unreasonable delay. See Thomas v. Maricopa Cnty. Jail, 265 F. App’x. 606, 607 20 (9th Cir. 2008) (holding that district court did not abuse its discretion by dismissing 21 pro se prisoner lawsuit for failure to respond to a court order for almost three 22 months). Plaintiff’s noncompliance also interferes with the public’s interest in the 23 expeditious resolution of this litigation and hinders the Court’s ability to manage its 24 docket. See In re: Phenylpropanolamine, 460 F.3d at 1227 (“[The Ninth Circuit] 25 defer[s] to the district court’s judgment about when a delay becomes unreasonable 26 ‘because it is in the best position to determine what period of delay can be endured 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). 1 before its docket becomes unmanageable.”) (quoting In re Eisen, 31 F.3d 1447, 1451 2 (9th Cir. 1994)). The first and second factors strongly favor dismissal. 3 4 B. Risk of Prejudice to Defendants 5 The third factor (risk of prejudice to the defendants) also weighs in favor of 6 dismissal. “A defendant suffers prejudice if the plaintiff’s actions impair the 7 defendant’s ability to go to trial or threaten to interfere with the rightful decision of 8 the case.” In re: Phenylpropanolamine, 460 F.3d at 1227 (quoting Adriana Int’l 9 Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990)). “Unnecessary delay 10 inherently increases the risk that witnesses’ memories will fade and evidence will 11 become stale.” Pagtalunan, 291 F.3d at 643. When considering prejudice, “the 12 failure to prosecute diligently is sufficient by itself to justify dismissal, even in the 13 absence of a showing of actual prejudice to the defendant from the failure. . . . The 14 law presumes injury from unreasonable delay.” In re Eisen, 31 F.3d at 1452 15 (alteration in original) (quoting Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th 16 Cir. 1976)). The risk of prejudice to a defendant is related to a plaintiff’s reason for 17 failure to prosecute an action. Pagtalunan, 291 F.3d at 642. “Whether prejudice is 18 sufficient to support an order of dismissal is in part judged with reference to the 19 strength of the plaintiff’s excuse for the default.” Malone, 833 F.2d at 131. 20 Plaintiff continuously has refused to file a 4AC without explanation. In the 21 absence of any communication from Plaintiff for almost five months, Plaintiff’s 22 delay was unreasonable and the third factor favors dismissal. See Laurino v. Syringa 23 Gen. Hosp., 279 F.3d 750, 753 (9th Cir. 2002) (“[A] presumption of prejudice arises 24 from a plaintiff’s unexplained failure to prosecute.”). 25 26 C. Availability of Less Drastic Alternatives 27 The fourth factor (the availability of less drastic alternatives) strongly supports 28 dismissal. “The district court need not exhaust every sanction short of dismissal 1 before finally dismissing a case, but must explore possible and meaningful 2 alternatives.” Henderson, 779 F.2d at 1424. 3 The Court considered and implemented less drastic alternatives prior to 4 dismissal. The Court explicitly warned Plaintiff in two separate orders that failure to 5 file a 4AC would result in a recommendation that the action be dismissed for failure 6 to prosecute and/or failure to comply with Court orders pursuant to Federal Rule of 7 Civil Procedure 41(b). (Order; OSC.) See In re: Phenylpropanolamine, 460 F.3d at 8 1229 (“Warning that failure to obey a court order will result in dismissal can itself 9 meet the ‘consideration of alternatives’ requirement.”). The Court also extended 10 Plaintiff’s deadline to file a 4AC from November 30, 2020 to February 4, 2021 11 (OSC). See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (holding that 12 the district court’s allowance of an additional thirty days for plaintiff to file an 13 amended complaint was an attempt at a less drastic sanction). The fourth factor 14 weighs in favor of dismissal. 15 16 D. Public Policy Favoring Disposition on the Merits 17 As to the fifth factor, “[p]ublic policy favors disposition of cases on the 18 merits.” Pagtalunan, 291 F.3d at 643. However, “a case that is stalled or 19 unreasonably delayed by a party’s failure to comply with deadlines . . . cannot move 20 toward resolution on the merits.” In re: Phenylpropanolamine, 460 F.3d at 1228. 21 Thus, “this factor lends little support to a party whose responsibility it is to move a 22 case towards disposition on the merits but whose conduct impedes progress in that 23 direction.” Id. (internal quotation marks omitted). The case has been stalled by 24 Plaintiff’s failure to file a 4AC or otherwise communicate with the Court since 25 October 14, 2020. Still, the public policy favoring the resolution of disputes on the 26 merits is strong and, under the circumstances, outweighs Plaintiff’s noncompliance 27 and inaction. 28 /// 1 E. Dismissal Without Prejudice 2 In summary, Plaintiff's failure to file a 4AC or otherwise participate in this 3 || lawsuit since October 14, 2020 constitutes willful unreasonable delay. Four of the 4 || Rule 41(b) dismissal factors weigh in favor of dismissal, whereas only one factor 5 || weighs against dismissal. “While the public policy favoring disposition of cases on 6 || their merits weighs against [dismissal], that single factor is not enough to preclude 7 || imposition of this sanction when the other four factors weigh in its favor.” Rio 8 || Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1022 (9th Cir. 2002). The Court 9 || concludes that dismissal of this action for failure to prosecute and to comply with 10 || Court orders is warranted, but, consistent with Rule 41(b) and this Court’s exercise 11 || of its discretion, the dismissal is without prejudice. 12 13 | IV. CONCLUSION 14 IT THEREFORE IS ORDERED that this lawsuit is DISMISSED without 15 || preyudice. No further filings shall be accepted under this case number. Mab L. 17 || DATED: March 8, 2021 ak Conn 18 MARK C. SCARSI UNITED STATES DISTRICT JUDGE 19 || Presented by: 20 .

UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28