Steven W. Chase v. J. Engleman

Opinion

STEVEN W. CHASE, ) Case No. CV 22-5641-AB (JPR) ) Plaintiff, ) ORDER DISMISSING ACTION FOR ) FAILURE TO PROSECUTE AND FAILURE v. ) TO STATE A CLAIM ) J. ENGLEMAN, Warden, ) ) Defendant. ) ) ) On June 20, 2023, the Court accepted the Magistrate Judge’s Report and Recommendation and granted in part Defendant’s motion for summary judgment in this civil-rights action, granting the motion as to two of Plaintiff’s claims but denying it on a third. The Court gave Plaintiff 30 days to file an amended complaint properly stating that claim. Because of some confusion concerning entry of the order on the docket, the Magistrate Judge sua sponte extended Plaintiff’s deadline, giving him an additional 28 days, or until October 13. He still has not filed an amended complaint or requested an extension of time to do so, and the Court’s review of the Federal Bureau of Prisons’s Inmate Locator website shows that he remains incarcerated at his address of record. In her September 15 minute order extending the time 1 for him to file an amended complaint, the Magistrate Judge warned Plaintiff that if he “fail[ed] to file a timely amended complaint, his lawsuit w[ould] likely be dismissed.” Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (per curiam), examined when it is appropriate to dismiss a pro se plaintiff’s lawsuit for failure to prosecute. See also Link v. Wabash R.R., 370 U.S. 626, 629-30 (1962) (“The power to invoke [dismissal] is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts.”). A court must consider “(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, 856 F.2d at 1440. Unreasonable delay creates a rebuttable presumption of prejudice to the defendants that can be overcome only with an affirmative showing of just cause by the plaintiff. See In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994). Here, the first, second, third, and fifth Carey factors militate in favor of dismissal. In particular, Plaintiff has offered no explanation for his failure to file an amended complaint fixing the deficiencies identified by the Court. Thus, he has not rebutted the presumption of prejudice to Defendants. No less drastic sanction is available, as the Complaint fails to properly allege jurisdiction and therefore cannot proceed, and Plaintiff is unable or unwilling to comply with the instructions for fixing his allegations. Because his lawsuit cannot go 2 forward in its current form, the Court is unable to manage its docket. Although the fourth Carey factor weighs against dismissal — as it always does — together the other factors outweigh the public’s interest in disposing of the case on its 5l}merits. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261-63 (9th Cir. 6] 1992) (as amended) (upholding dismissal of pro se civil-rights action for failure to timely file amended complaint remedying deficiencies in caption); Baskett v. Quinn, 225 F. App’x 639, 640 (9th Cir. 2007) (upholding dismissal of pro se civil-rights } action for failure to state claim or timely file amended } complaint). Accordingly, this action is dismissed for failure to prosecute and failure to state a claim.

patvep: November 9, 2023 ANDRE BIROTTE JR. U.S. DISTRICT JUDGE 1 Presented by: 50 hreablatt~ ean Rosenbluth 21})|U.S. Magistrate Judge