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6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TERRY LEESHAWN LEWIS, Case No. 2:19-cv-07891-JAK (SHK) 12 Plaintiff, ORDER DISMISSING ACTION FOR FAILURE TO PROSECUTE 13 v. 14 LOS ANGELES COUNTY, et al., 15 Defendant. 16 17 18 I. INTRODUCTION 19 On June 26, 2019, Plaintiff Terry Leeshawn Lewis (“Plaintiff”), proceeding 20 as a self-represented party, constructively filed1 a Complaint asserting claims under 21 42 U.S.C. § 1983. The Complaint was filed in the District of Oregon together with 22 an Application for Leave to Proceed in forma pauperis (“Application”) and a 23 Motion for Appointment of Counsel (“Motion”). Electronic Case Filing Numbers 24 (“ECF Nos.”) 1-3. On September 11, 2019, the case was transferred from the 25 District of Oregon to this District. ECF No. 5, Transfer Order. In Plaintiff’s 26 Application, he failed to provide a certified copy of his inmate trust fund statement 27 1 Under the “mailbox rule,” when a pro se prisoner gives prison authorities a pleading to mail to court, the court 1 for the prior six months. See ECF No. 1, Application. Plaintiff’s Application was 2 conditionally granted, in an Order that directed Plaintiff to file a copy of his trust 3 account by October 16, 2019. ECF No. 12, Order Conditionally Granting IFP 4 Application. 5 On October 18, 2019, an Order issued that dismissed the Complaint with 6 leave to amend (“ODLA”). ECF No. 14, ODLA. The ODLA instructed that if 7 Plaintiff elected to pursue this action he was to file an amended complaint [(“First 8 Amended Complaint” or “FAC”)] within 21 days of the service date of the 9 ODLA. That Order included the following language: 10 Plaintiff is cautioned that if Plaintiff does not comply with the 11 instructions enumerated above, the Court may recommend that 12 this action be dismissed with or without prejudice for failure to state 13 a claim, prosecute and/or obey Court orders under Federal Rule of 14 Civil Procedure 41(b). 15 Id. at 24-26 (emphasis in original). 16 Since the ODLA was issued, Plaintiff has filed an additional copy of his trust 17 account and a request to submit a “supplemental complaint.” See ECF Nos. 15, 18 16. 19 On October 30, 2019, an Order to Show Cause (“OSC”) was issued, which 20 was set for November 18, 2019, as to why Plaintiff’s request should not be denied 21 and why this action should not be dismissed for failing to comply with orders of the 22 Court. ECF No. 17, OSC. The OSC stated that Plaintiff could satisfy its terms by 23 either filing the FAC in the manner described in Section IV of the ODLA, or by 24 providing an explanation as to why he could not amend his Complaint in the 25 manner described in Section IV of the ODLA [ECF No. 14, OLDA at 24-26]. Id. 26 The OSC once again cautioned Plaintiff that a failure to comply with its terms 27 would result in a recommendation that the action be dismissed, without prejudice, 1 for failure to prosecute and to comply with orders of the Court. Id. Plaintiff did 2 not respond. 3 On December 5, 2019, a Final Order to Show Cause (“Final OSC”) was 4 issued. ECF No. 18, Final OSC. It directed that Plaintiff: 5 either (a) advise the Court that he does not desire to pursue this action; 6 (b) if Plaintiff does desire to pursue this action, show good cause in 7 writing, if any exists, why Plaintiff has not timely filed with the Court 8 his FAC, and why the Court should not recommend that this action be 9 dismissed for failure to prosecute and failure to comply with the Court’s 10 prior Order; (c) state that he wishes to proceed in the matter based on 11 the allegations in the original complaint; or (d) file a FAC. 12 Id. at 1 (emphasis added). 13 The Final OSC stated that Plaintiff had until December 19, 2019, to comply 14 with its terms by choosing one of the options that was provided. Id. The Final 15 OSC cautioned that if Plaintiff failed to comply with its terms, pursuant to Fed. R. 16 Civ. P. 41(b), the Magistrate Judge would recommend that the matter be dismissed, 17 without prejudice, for failure to prosecute or comply with orders of the Court. Id. 18 at 1-2. 19 As of December 26, 2019, Plaintiff did not file an amended complaint, as 20 ordered, or request an extension of time to do so. Given Plaintiff’s failure to 21 prosecute this matter diligently and to follow Court orders, this action is 22 DISMISSED, without prejudice, pursuant to Fed. R. Civ. P. 41(b) and Local Rule 23 (“L.R.”) 41-1. 24 II. DISCUSSION 25 A. Legal Standards 26 Fed. R. Civ. P. 41(b) provides that “[i]f the plaintiff fails to prosecute or to 27 comply with these rules or a court order, a defendant may move to dismiss the 1 supported by a showing of unreasonable delay.” Henderson v. Duncan, 779 F.2d 2 1421, 1423 (9th Cir. 1986). It is well-settled, however, that a district court has the 3 “inherent power” to dismiss an action under Rule 41(b) if a plaintiff fails to 4 prosecute the action or comply with a court order. Link v. Wabash R.R. Co., 370 5 U.S. 626, 629-30 (1962) (citation omitted); Henderson, 779 F.2d at 1425. 6 Similarly, the Local Rules permit the dismissal of a civil action “which ha[s] been 7 pending for an unreasonable period of time without any action.” L.R. 41-1. 8 The following factors are considered in determining whether an action 9 should be dismissed for failure to prosecute or to comply with a Court order: “(1) 10 the public’s interest in expeditious resolution of litigation; (2) the court’s need to 11 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 12 favoring disposition of cases on their merits; and (5) the availability of less drastic 13 sanctions.” Henderson, 779 F.2d at 1423 (citing Ash v. Cvetkov, 739 F.2d 493, 496 14 (9th Cir. 1984)). 15 B. Analysis 16 Four of the five Henderson factors weigh in favor of dismissal. The first two 17 -- the public’s interest in expeditious resolution of litigation and the Court’s need 18 to manage its docket -- weigh in favor of dismissal. Plaintiff’s failure to file an 19 amended complaint as ordered precluded the presentation of the claims in an 20 appropriate manner. His failure to comply with clear orders of the Court had a 21 similar effect, in that it showed an inability to pursue the action in a manner that 22 would serve judicial and party efficiency. Plaintiff was provided with many 23 opportunities, and a substantial period of time, in which he could have either filed 24 an amended complaint or stated an intention to do so. Plaintiff failed to do so. 25 Accordingly, litigation of this matter, and the need for the Court to manage its 26 docket, have been unnecessarily and unreasonably delayed. 27 The third factor -- prejudice to Defendants – also weighs slightly in favor of 1 when a plaintiff unreasonably delays the prosecution of an action. In re Eisen, 31 2 F.3d 1447, 1453 (9th Cir. 1994). This can arise because the need to gather and 3 preserve evidence is unknown, and the memory of relevant witnesses may fade or 4 these witnesses may become unavailable. Although Defendants have not yet been 5 served because the Complaint was dismissed at the screening stage, assuming that a 6 viable amended complaint could have been filed, it would have been served on 7 them later than necessary. Although this factor may have less weight that the first 8 two, it still supports the dismissal of the action. Id. at 1452-53 (‘[T]he failure to 9 prosecute diligently is sufficient by itself to justify a dismissal, even in the absence 10 of a showing of actual prejudice to the defendant.’” (citation omitted)).
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6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TERRY LEESHAWN LEWIS, Case No. 2:19-cv-07891-JAK (SHK) 12 Plaintiff, ORDER DISMISSING ACTION FOR FAILURE TO PROSECUTE 13 v. 14 LOS ANGELES COUNTY, et al., 15 Defendant. 16 17 18 I. INTRODUCTION 19 On June 26, 2019, Plaintiff Terry Leeshawn Lewis (“Plaintiff”), proceeding 20 as a self-represented party, constructively filed1 a Complaint asserting claims under 21 42 U.S.C. § 1983. The Complaint was filed in the District of Oregon together with 22 an Application for Leave to Proceed in forma pauperis (“Application”) and a 23 Motion for Appointment of Counsel (“Motion”). Electronic Case Filing Numbers 24 (“ECF Nos.”) 1-3. On September 11, 2019, the case was transferred from the 25 District of Oregon to this District. ECF No. 5, Transfer Order. In Plaintiff’s 26 Application, he failed to provide a certified copy of his inmate trust fund statement 27 1 Under the “mailbox rule,” when a pro se prisoner gives prison authorities a pleading to mail to court, the court 1 for the prior six months. See ECF No. 1, Application. Plaintiff’s Application was 2 conditionally granted, in an Order that directed Plaintiff to file a copy of his trust 3 account by October 16, 2019. ECF No. 12, Order Conditionally Granting IFP 4 Application. 5 On October 18, 2019, an Order issued that dismissed the Complaint with 6 leave to amend (“ODLA”). ECF No. 14, ODLA. The ODLA instructed that if 7 Plaintiff elected to pursue this action he was to file an amended complaint [(“First 8 Amended Complaint” or “FAC”)] within 21 days of the service date of the 9 ODLA. That Order included the following language: 10 Plaintiff is cautioned that if Plaintiff does not comply with the 11 instructions enumerated above, the Court may recommend that 12 this action be dismissed with or without prejudice for failure to state 13 a claim, prosecute and/or obey Court orders under Federal Rule of 14 Civil Procedure 41(b). 15 Id. at 24-26 (emphasis in original). 16 Since the ODLA was issued, Plaintiff has filed an additional copy of his trust 17 account and a request to submit a “supplemental complaint.” See ECF Nos. 15, 18 16. 19 On October 30, 2019, an Order to Show Cause (“OSC”) was issued, which 20 was set for November 18, 2019, as to why Plaintiff’s request should not be denied 21 and why this action should not be dismissed for failing to comply with orders of the 22 Court. ECF No. 17, OSC. The OSC stated that Plaintiff could satisfy its terms by 23 either filing the FAC in the manner described in Section IV of the ODLA, or by 24 providing an explanation as to why he could not amend his Complaint in the 25 manner described in Section IV of the ODLA [ECF No. 14, OLDA at 24-26]. Id. 26 The OSC once again cautioned Plaintiff that a failure to comply with its terms 27 would result in a recommendation that the action be dismissed, without prejudice, 1 for failure to prosecute and to comply with orders of the Court. Id. Plaintiff did 2 not respond. 3 On December 5, 2019, a Final Order to Show Cause (“Final OSC”) was 4 issued. ECF No. 18, Final OSC. It directed that Plaintiff: 5 either (a) advise the Court that he does not desire to pursue this action; 6 (b) if Plaintiff does desire to pursue this action, show good cause in 7 writing, if any exists, why Plaintiff has not timely filed with the Court 8 his FAC, and why the Court should not recommend that this action be 9 dismissed for failure to prosecute and failure to comply with the Court’s 10 prior Order; (c) state that he wishes to proceed in the matter based on 11 the allegations in the original complaint; or (d) file a FAC. 12 Id. at 1 (emphasis added). 13 The Final OSC stated that Plaintiff had until December 19, 2019, to comply 14 with its terms by choosing one of the options that was provided. Id. The Final 15 OSC cautioned that if Plaintiff failed to comply with its terms, pursuant to Fed. R. 16 Civ. P. 41(b), the Magistrate Judge would recommend that the matter be dismissed, 17 without prejudice, for failure to prosecute or comply with orders of the Court. Id. 18 at 1-2. 19 As of December 26, 2019, Plaintiff did not file an amended complaint, as 20 ordered, or request an extension of time to do so. Given Plaintiff’s failure to 21 prosecute this matter diligently and to follow Court orders, this action is 22 DISMISSED, without prejudice, pursuant to Fed. R. Civ. P. 41(b) and Local Rule 23 (“L.R.”) 41-1. 24 II. DISCUSSION 25 A. Legal Standards 26 Fed. R. Civ. P. 41(b) provides that “[i]f the plaintiff fails to prosecute or to 27 comply with these rules or a court order, a defendant may move to dismiss the 1 supported by a showing of unreasonable delay.” Henderson v. Duncan, 779 F.2d 2 1421, 1423 (9th Cir. 1986). It is well-settled, however, that a district court has the 3 “inherent power” to dismiss an action under Rule 41(b) if a plaintiff fails to 4 prosecute the action or comply with a court order. Link v. Wabash R.R. Co., 370 5 U.S. 626, 629-30 (1962) (citation omitted); Henderson, 779 F.2d at 1425. 6 Similarly, the Local Rules permit the dismissal of a civil action “which ha[s] been 7 pending for an unreasonable period of time without any action.” L.R. 41-1. 8 The following factors are considered in determining whether an action 9 should be dismissed for failure to prosecute or to comply with a Court order: “(1) 10 the public’s interest in expeditious resolution of litigation; (2) the court’s need to 11 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 12 favoring disposition of cases on their merits; and (5) the availability of less drastic 13 sanctions.” Henderson, 779 F.2d at 1423 (citing Ash v. Cvetkov, 739 F.2d 493, 496 14 (9th Cir. 1984)). 15 B. Analysis 16 Four of the five Henderson factors weigh in favor of dismissal. The first two 17 -- the public’s interest in expeditious resolution of litigation and the Court’s need 18 to manage its docket -- weigh in favor of dismissal. Plaintiff’s failure to file an 19 amended complaint as ordered precluded the presentation of the claims in an 20 appropriate manner. His failure to comply with clear orders of the Court had a 21 similar effect, in that it showed an inability to pursue the action in a manner that 22 would serve judicial and party efficiency. Plaintiff was provided with many 23 opportunities, and a substantial period of time, in which he could have either filed 24 an amended complaint or stated an intention to do so. Plaintiff failed to do so. 25 Accordingly, litigation of this matter, and the need for the Court to manage its 26 docket, have been unnecessarily and unreasonably delayed. 27 The third factor -- prejudice to Defendants – also weighs slightly in favor of 1 when a plaintiff unreasonably delays the prosecution of an action. In re Eisen, 31 2 F.3d 1447, 1453 (9th Cir. 1994). This can arise because the need to gather and 3 preserve evidence is unknown, and the memory of relevant witnesses may fade or 4 these witnesses may become unavailable. Although Defendants have not yet been 5 served because the Complaint was dismissed at the screening stage, assuming that a 6 viable amended complaint could have been filed, it would have been served on 7 them later than necessary. Although this factor may have less weight that the first 8 two, it still supports the dismissal of the action. Id. at 1452-53 (‘[T]he failure to 9 prosecute diligently is sufficient by itself to justify a dismissal, even in the absence 10 of a showing of actual prejudice to the defendant.’” (citation omitted)). 11 The fourth factor -- public policy favoring deciding cases on the merits -- 12 ordinarily weighs against dismissal. However, it is the responsibility of a plaintiff to 13 present claims timely and to comply with Court orders so that there can be a timely 14 disposition on the merits. Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th 15 Cir. 1991). By failing to comply with prior orders, Plaintiff has impeded the 16 resolution of the action on the merits. Therefore, this factor has limited weight. See 17 id. 18 The fifth factor -- availability of less drastic sanctions -- also weighs in favor 19 of dismissal. Less drastic measures failed to work because Plaintiff ignored the 20 prior orders. That non-compliance required the use of more judicial resources. It is 21 also far from clear what less drastic sanction is available and whether it would work. 22 Plaintiff must comply with orders of the Court so his claims can be addressed. His 23 failure to do so supports the inferences that he has elected not to do so, and that he 24 does not wish to pursue this action in an appropriate manner. Finally, although 25 dismissal with prejudice is warranted, this Order dismisses the action without 26 prejudice. That approach confirms that this factor, as applied, supports dismissal. 27 III. CONCLUSION 1 For the reasons stated in this Order, this action is DISMISSED, without 2 | prejudice. 3 | ITIS SO ORDERED. Qin VE 5 Dated: January 2, 2020 JOHN ROSSA 6 nited States District Judge 7 | Presented by: 8 9 Wes 10 | HONORABLE SHASHI H. KEWALRAMANI United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28