Todd M. Durham v. City of Long Beach

• Court: District Court, C.D. California
• Decided: September 8, 2021
• Docket: 2:20-cv-11449
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 TODD M. DURHAM, ) Case No. CV 20-11449-JVS (JPR) ) 11 Plaintiff, ) ORDER DISMISSING ACTION FOR ) FAILURE TO PROSECUTE AND FAILURE 12 v. ) TO STATE A CLAIM ) 13 CITY OF LONG BEACH et al., ) ) 14 Defendants. ) ) 15 ) 16 Plaintiff filed this civil-rights action in December 2020. 17 Defendants moved to dismiss, and this Court granted their motion 18 in part, dismissing the Complaint with leave to amend.1 The 19 Court ordered Plaintiff to file a first amended complaint by no 20 later than August 25, 2021, and warned him that his lawsuit might 21 be dismissed if he didn’t. To date he has not filed an amended 22 complaint or requested an extension of time to do so, and no mail 23 the Court has sent to his address of record has been returned as 24 undeliverable. 25 26 27 1 The Court accepted the Magistrate Judge’s Report and Recommendation so recommending on July 28, 2021, after neither side 28 objected to it. 1 1 Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (per 2 curiam), examined when it is appropriate to dismiss a pro se 3 plaintiff’s lawsuit for failure to prosecute. See also Link v. 4 Wabash R.R., 370 U.S. 626, 629-30 (1962) (“The power to invoke 5 [dismissal] is necessary in order to prevent undue delays in the 6 disposition of pending cases and to avoid congestion in the 7 calendars of the District Courts.”). A court must consider “(1) 8 the public’s interest in expeditious resolution of litigation; 9 (2) the court’s need to manage its docket; (3) the risk of 10 prejudice to the defendants; (4) the public policy favoring 11 disposition of cases on their merits[;] and (5) the availability 12 of less drastic sanctions.” Carey, 856 F.2d at 1440. 13 Unreasonable delay creates a rebuttable presumption of prejudice 14 to the defendants that can be overcome only with an affirmative 15 showing of just cause by the plaintiff. See In re Eisen, 31 F.3d 16 1447, 1452-53 (9th Cir. 1994). 17 Here, the first, second, third, and fifth Carey factors 18 militate in favor of dismissal. In particular, Plaintiff has 19 offered no explanation for his failure to file an amended 20 complaint fixing the deficiencies identified by the Court. Thus, 21 he has not rebutted the presumption of prejudice to Defendants. 22 No less drastic sanction is available, as the Complaint fails to 23 state a claim and cannot proceed, and Plaintiff is unable or 24 unwilling to comply with the Court’s instructions for fixing his 25 allegations. Because none of his claims can proceed, the Court 26 is unable to manage its docket. Although the fourth Carey factor 27 weighs against dismissal — as it always does — together the other 28 factors outweigh the public’s interest in disposing of the case 2 its merits. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261-63 (9th Cir. 1992) (as amended) (upholding dismissal of pro se 3] civil-rights action for failure to timely file amended complaint 4 || remedying deficiencies in caption); Baskett v. Quinn, 225 F. 5 | App’ x 639, 640 (9th Cir. 2007) (upholding dismissal of pro se 6 | civil-rights action for failure to state claim or timely file 7 | amended complaint). 8 ORDER 9 Accordingly, this action is dismissed for failure to 10 | prosecute and failure to state a claim. 11 LET JUDGMENT BE ENTERED ACG®@HDINGLY. 12 +) 13 | pavep: September 8, 2021 JAMES V. SELNA 14 U.S. DISTRICT JUDGE 15 | Presented by: 16 Jean Rosenbluth 17 Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28