Roberto Leveron v. W. Z. Jenkins

Opinion

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

ROBERTO LEVERON, Case No. 2:23-cv-04914-RGK (MAR) Plaintiff, MEMORANDUM AND ORDER DISMISSING CASE v. Defendant. I. On June 3, 2023, Roberto Leveron (“Plaintiff”), proceeding pro se and in forma pauperis (“IFP”), constructively filed1 a Civil Rights Complaint (“Complaint”) pursuant to 42 U.S.C. § 1983. ECF Docket No. (“Dkt.”) 1.2 On August 28, 2023, the Court issued an Order Dismissing the Complaint with Leave to Amend (“ODLA”), granting Plaintiff thirty (30) days to file a First Amended Complaint (“FAC”). Dkt. 12. On October 12, 2023 and November 14, 2023, the Court issued Orders to Show Cause (“OSC”) why the Complaint should not be dismissed for lack

1 Under the “mailbox rule”, when a pro se prisoner gives prison authorities a pleading to mail to the court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010). of prosecution. Dkts. 13, 14. To date, Plaintiff has failed to comply with the Court’s Orders. For the reasons below, the Court DISMISSES this action, without prejudice. II. On June 3, 2023, Plaintiff constructively filed the instant Complaint. Dkt. 1. August 28, 2023, the Court issued an ODLA, granting Plaintiff until September 27, 2023 to file a FAC. Dkt. 12. On October 12, 2023, this Court issued an OSC, ordering Plaintiff to show by November 3, 2023 why this action should not be dismissed for failure to prosecute. Dkt. 13. Plaintiff was warned that “[f]ailure to respond to the Court’s Order will result in the dismissal of the action.” Id. (emphasis in original). On November 14, 2023, this Court issued a second OSC ordering Plaintiff to respond to the Court’s previous Orders. Dkt. 14. Plaintiff was warned that he “must comply . . . by November 27, 2023, or this action will be dismissed for failure to prosecute.” Id. (emphasis in original). Plaintiff has not corresponded with the Court at all since August 3, 2023. Dkt. 10. District courts have sua sponte authority to dismiss actions for failure to prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 629–30 (1962); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating courts may dismiss an action under Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute or comply with the Federal Rules of Civil Procedure or the court’s orders); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (ordering dismissal for failure to In deciding whether to dismiss for failure to prosecute or comply with court orders, a district court must consider five (5) 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.” Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). “[The Ninth Circuit] ‘may affirm dismissal where at least four factors support dismissal . . . or where at least three factors “strongly” support dismissal.’” Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (quoting Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998)). In a case involving sua sponte dismissal, however, the fifth Henderson factor regarding the availability of less drastic sanctions warrants special focus. Hernandez, 138 F.3d at 399. 1. The public’s interest in expeditious resolution of litigation In the instant action, the public’s interest in expeditious resolution of litigation weighs in favor of dismissal. See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (“The public’s interest in expeditious resolution of litigation always favors dismissal.” (quoting Yourish, above) (internal quotation omitted)). Plaintiff has not filed a FAC in compliance with the Court’s August 28, 2023 ODLA or otherwise responded to the Court’s OSCs. In fact, Plaintiff has not corresponded with the Court at all since August 3, 2023. Dkt. 10. Given that Plaintiff has failed to interact with the Court for over four (4) months, this factor weighs in favor of dismissal. See id.; see also Pagtalunan, 291 F.3d at 642 (finding that the plaintiff’s failure to pursue the case for almost four (4) months weighed in favor of dismissal). 2. The Court’s need to manage its docket The second factor—the Court’s need to manage its docket—likewise weighs in subject to the endless vexatious noncompliance of litigants.” See Ferdik, 963 F.2d at 1261. As such, the second factor looks to whether a particular case has “consumed . . . time that could have been devoted to other cases on the [Court’s] docket.” See Pagtalunan, 291 F.3d at 642; Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 2004) (“[R]esources continue to be consumed by a case sitting idly on the court’s docket.”). On August 28, 2023, the Court issued an ODLA ordering Plaintiff to file a FAC by September 18, 2023. Dkt. 12 at 1, 17. The ODLA cautioned Plaintiff that failure to timely file a response to the ODLA “will result” in the dismissal of the Complaint for failure to prosecute. Id. at 18. On October 12, 2023, this Court issued an OSC giving Plaintiff until November 3, 2023, to show why this action should not be dismissed for failure to prosecute. Dkt. 13. Plaintiff was again warned that, “[f]ailure to respond to the Court’s Order will result in the dismissal of the action.” Id. (emphasis added). On November 14, 2023, the Court issued a Second OSC, ordering him to comply within fourteen (14) days. Dkt. 14. The Court again warned that failure to respond “will” result in the dismissal of the action. Id. Plaintiff has failed to comply with any of the Court’s Orders, all of which warned Plaintiff that his failure to comply could or would result in the recommended dismissal of the Complaint. See Dkts. 12, 13, 14. Plaintiff’s failure to prosecute and follow Court Orders hinders the Court’s ability to move this case toward disposition and suggests Plaintiff does not intend to or cannot litigate this action diligently. Consequently, the Court’s need to manage its docket favors dismissal here. 3. The risk of prejudice to Defendant The third factor—prejudice to Defendant(s)—also weighs in favor of dismissal. A rebuttable presumption of prejudice to defendant arises when plaintiffs unreasonably delay prosecution of an action. See In re Eisen, 31 F.3d 1447, 1452–53 (9th Cir. 1994) (“[T]he failure to prosecute diligently is sufficient by itself to justify dismissal . . . [t]he law presumes injury from unreasonable delay.”). Nothing suggests such a presumption is unwarranted in this case. Plaintiff has not provided any reason for his failure to comply with either the Court’s ODLA or OSCs and for his failure to communicate with the Court since August 3, 2023. Given the length of the delay, the Court finds Plaintiff’s delay in prosecuting this case to be unreasonable. Thus, prejudice is presumed and weighs in favor of dismissal. See, e.g., In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 1217, 1227 (9th Cir. 2006) (“The law . . . presumes prejudice from unreasonable delay.”). 4. Public policy favoring disposition on the merits The fourth factor—public policy in favor of deciding cases on the merits— ordinarily weighs against dismissal. See In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d at 1228. Here, as it usually does, the fourth factor weighs against dismissal. It is, however, Plaintiff’s responsibility to move towards disposition at a reasonable pace and avoid dilatory and evasive tactics. See Morris v. Morgan Stanley, 942 F.2d 648, 652 (9th Cir. 1991). Plaintiff has not discharged this responsibility despite having been: (1) instructed on his responsibilities; (2) granted sufficient time in which to discharge them; and (3) warned of the consequences of failure to do so. See Dkts. 12, 13, 14. Under these circumstances, and without any other information from Plaintiff, the policy favoring resolution of disputes on the merits does not outweigh Plaintiff’s failure to obey Court Orders or to file responsive documents within the time granted. 5. Availability of less drastic alternatives The fifth factor—availability of less drastic sanctions—also weighs in favor of dismissal. A “district court need not exhaust every sanction short of dismissal before finally dismissing a case, but must explore possible and meaningful alternatives.” Henderson, 779 F.2d at 1424. Less drastic alternatives to dismissal include warning a United States Postal Service, 833 F.2d 128, 132 n.1 Oth Cir. 1987). Further, “a district court’s warning to a party that his [or her] failure to obey the court’s order will result in dismissal can satisfy the “consideration of alternatives’ requirement.” Ferdik, 963 F.2d at 1262 (citations omitted). Here, the Court cannot move the case toward disposition without Plaintiffs compliance with Court Orders or participation in this litigation. Plaintiff has shown he is either unwilling or unable to comply with Court Orders by filing responsive documents or otherwise cooperating in prosecuting this action. Given this record, the Court finds that any less drastic alternatives to dismissal would be inadequate to remedy Plaintiffs failures to obey Court Orders and to prosecute. 6. Summaty Finally, while dismissal should not be entered unless Plaintiff has been notified dismissal is imminent, see W. Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1523 Oth Cir. 1990), the Court has warned Plaintiff about the potential dismissal in the August 28, 2023 ODLA and in two (2) separate OSCs. See Dkts. 12, 13, 14. As discussed above, four (4) of the Rule 41(b) factors weigh in favor of dismissal. Accordingly, this action is subject to dismissal. IV. IT IS THEREFORE ORDERED THAT Petitionet’s case is DISMISSED without prejudice. Dated: December 7, 2023 A Qacrgnas NOBABLE R. GARY KLAUSNER 95 United States District Judge Presented by: {PB Matted States Magisteate Judge