Ricky T. Russell v. Nathan Townsend

• Court: District Court, C.D. California
• Decided: August 1, 2023
• Docket: 5:23-cv-00038
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 RICKY T. RUSSELL, ) Case No. EDCV 23-0038-DOC (JPR) ) 11 Plaintiff, ) ORDER DISMISSING ACTION FOR ) FAILURE TO PROSECUTE AND FAILURE 12 v. ) TO STATE A CLAIM ) 13 NATHAN TOWNSEND et al., ) ) 14 Defendants. ) ) 15 ) 16 On January 9, 2023, Plaintiff filed this civil-rights action 17 pro se. On June 6, 2023, the Court dismissed the Complaint for 18 failure to state a claim but with leave to amend, telling 19 Plaintiff that if he wished to pursue this lawsuit, he had to 20 file a first amended complaint complying with its instructions by 21 no later than July 5. The Court warned him, in bold letters, 22 that if he did not timely do so, his lawsuit could be dismissed. 23 To date he has not filed an amended complaint or requested an 24 extension of time to do so, and no mail the Court has sent to his 25 address of record — where he apparently remains housed, see Cal. 26 Inmate Locator, https://inmatelocator.cdcr.ca.gov/search.aspx 27 (search for “Ricky” with “Russell” showing that Plaintiff remains 28 1 1 at Valley State Prison) (last visited July 28, 2023) — has been 2 returned as undeliverable. 3 Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (per 4 curiam), examined when it is appropriate to dismiss a pro se 5 plaintiff’s lawsuit for failure to prosecute. See also Link v. 6 Wabash R.R., 370 U.S. 626, 629-30 (1962) (“The power to invoke 7 [dismissal] is necessary in order to prevent undue delays in the 8 disposition of pending cases and to avoid congestion in the 9 calendars of the District Courts.”). A court must consider “(1) 10 the public’s interest in expeditious resolution of litigation; 11 (2) the court’s need to manage its docket; (3) the risk of 12 prejudice to the defendants; (4) the public policy favoring 13 disposition of cases on their merits[;] and (5) the availability 14 of less drastic sanctions.” Carey, 856 F.2d at 1440. 15 Unreasonable delay creates a rebuttable presumption of prejudice 16 to the defendants that can be overcome only with an affirmative 17 showing of just cause by the plaintiff. See In re Eisen, 31 F.3d 18 1447, 1452-53 (9th Cir. 1994). 19 Here, the first, second, third, and fifth Carey factors 20 militate in favor of dismissal. In particular, Plaintiff has 21 offered no explanation for his failure to file an amended 22 complaint fixing the deficiencies identified by the Court. Thus, 23 he has not rebutted the presumption of prejudice to Defendants. 24 No less drastic sanction is available, as the Complaint fails to 25 state a claim and cannot proceed, and Plaintiff is unable or 26 unwilling to comply with the instructions for fixing his 27 allegations. Because none of his claims can proceed, the Court 28 is unable to manage its docket. Although the fourth Carey factor 2 weighs against dismissal — as it always does — together the other 2\| factors outweigh the public’s interest in disposing of the case 3]/on its merits. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261-63 (9th Cir. 1992) (as amended) (upholding dismissal of pro se 5 || civil-rights action for failure to timely file amended complaint 6 |] remedying deficiencies in caption); Baskett v. Quinn, 225 F. 7 || Ape’ x 639, 640 (9th Cir. 2007) (upholding dismissal of pro se 8} civil-rights action for failure to state claim or timely file 9} amended complaint). 10 ORDER 11 Accordingly, this action is dismissed for failure to 12 |} prosecute and failure to state a claim. 13 LET JUDGMENT BE ENTERED ACCORDINGLY.

Aauit 0 15 || DATED: _ August 1, 2023 a DAVID OO. CARTER 16 U.S. DISTRICT JUDGE Presented by: 18 brent Jean Rosenbluth Magistrate Judge 20 21 22 23 24 25 26 27 28