1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID BRYAN TURNER, JR., Case No. 20cv0652-AJB (RBB) BOOKING #197347785, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILURE TO vs. STATE A CLAIM UPON WHICH 14 RELIEF MAY BE GRANTED AND COUNTY OF SAN DIEGO, et al., 15 FOR FAILURE TO PROSECUTE IN Defendants. COMPLIANCE WITH COURT 16 ORDER REQUIRING AMENDMENT 17 18 19 On April 2, 2020, Plaintiff David Bryan Turner, Jr., while incarcerated the George 20 Bailey Detention Facility in San Diego, California, filed this civil rights action pursuant to 21 42 U.S.C. § 1983, accompanied by a motion to proceed in forma pauperis. (ECF Nos. 1- 22 2.) Plaintiff alleged that excessive force was used against him by unnamed San Diego 23 County Metropolitan Transit Officers in October 2018, and that unnamed San Diego 24 County Sheriff’s Deputies denied him adequate medical care while he was housed at the 25 George Bailey Detention Facility in March 2020. (ECF No. 1 at 1-6.) On May 11, 2020, 26 the Court denied Plaintiff’s motion to proceed in forma pauperis without prejudice for 27 failure to include required financial documentation. (ECF No. 3.) Plaintiff thereafter filed 28 three motions to proceed in forma pauperis. (ECF Nos. 4, 6, 8.) 1 On June 11, 2020, the Court granted Plaintiff leave to proceed in forma pauperis and 2 screened his Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). (ECF No. 9.) 3 Those statutes require a Court to sua sponte dismiss a prisoner’s IFP complaint, or any 4 portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages from 5 defendants who are immune. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en 6 banc); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010). Applying those statutes, 7 the Court found the claims in Plaintiff’s Complaint relating to excessive use of force by 8 the Transit officials were duplicative of several other civil rights cases Plaintiff had filed 9 in this Court, and that the denial of medical care allegations failed to state a claim upon 10 which relief may be granted. (Id. at 7-11.) The Court notified Plaintiff of the deficiencies 11 of his pleading, dismissed the Complaint without prejudice, granted thirty days leave to 12 amend, on or before July 13, 2020, and instructed him that if he failed to timely file an 13 amended complaint the Court would enter a final Order dismissing this action based on his 14 failure to state a claim and failure to prosecute. (Id. at 13, citing Lira v. Herrera, 427 F.3d 15 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix 16 his complaint, a district court may convert the dismissal of the complaint into dismissal of 17 the entire action.”)) 18 On June 24, 2020, Plaintiff filed a motion for appointment of counsel and a request 19 for extension of time to amend. (ECF No. 11.) On August 7, 2020, the Court denied the 20 motion for appointment of counsel and granted Plaintiff an extension of time to amend, on 21 or before October 6, 2020. (ECF No. 12.) The Court repeated its caution that a failure to 22 amend would result in the entry of a final order of dismissal. (Id. at 3-4, citing Lira, 427 23 F.3d at 1169.) 24 Over ten months have elapsed since the time to amend has passed and Plaintiff has 25 not amended in compliance with this Court’s Order or otherwise contacted the Court. This 26 Court has discretion to sua sponte dismiss a case for lack of prosecution or failure to 27 comply with a court order. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); 28 see also Fed. R. Civ. P. 41(b) (providing for involuntary dismissal for failure to prosecute 1 or comply with the federal rules or court order). “The failure of the plaintiff eventually to 2 respond to the court’s ultimatum–either by amending the complaint or by indicating to the 3 court that [he] will not do so–is properly met with the sanction of a Rule 41(b) dismissal.” 4 Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). 5 “In determining whether to dismiss a claim for failure to prosecute or failure to 6 comply with a court order, the Court must weigh the following factors: (1) the public’s 7 interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; 8 (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic 9 alternatives; and (5) the public policy favoring disposition of cases on their merits.” 10 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002), citing Ferdik v. Bonzelet, 963 11 F.2d 1258, 1260-61 (9th Cir. 1992). Because the Court informed Plaintiff of the defects of 12 his pleading and provided ample time to file an amended complaint but he has not amended 13 or contacted the Court, factors one, two and four weigh in favor of dismissal. See Yourish 14 v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (“The public’s interest in 15 expeditious resolution of litigation always favors dismissal.”); Pagtalunan, 291 F.3d at 642 16 (“The trial judge is in the best position to determine whether the delay in a particular case 17 interferes with the docket management and the public interest.”); Nevijel v. North Coast 18 Life Insurance Co., 651 F.2d 671, 674 (9th Cir. 1981) (noting that the court is not required 19 to exhaust all alternatives prior to dismissal). In light of Plaintiff’s failure to contact the 20 Court or otherwise respond to the Court’s prior Order requiring amendment, factor five 21 does not weigh against dismissal. See In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 22 460 F.3d 1217, 1227 (9th Cir. 2006) (the public policy favoring disposition on the merits 23 does not weigh against dismissal where plaintiff’s “conduct impedes progress in that 24 direction.”) Although factor three does not weigh in favor of dismissal, see Pagralunan, 25 291 F.3d at 642 (where defendants have not appeared, “[w]e have previously recognized 26 that pendency of a lawsuit is not sufficiently prejudicial in and of itself to warrant 27 dismissal.”), that factor alone is insufficient to avoid dismissal. See Rio Prop., Inc. v. Rio 28 Int’l Interlink, 284 F.3d 1007, 1022 (9th Cir. 2002) (“While the public policy favoring 1 disposition of cases on their merits weighs against [dismissal], that single factor is not 2 ||enough to preclude imposition of this sanction when the other four factors weigh in its 3 || favor.”’) 4 Weighing these factors, the Court finds dismissal is appropriate. See Hernandez v. 5 || City of El Monte, 138 F.3d 393, 399 (9th Cir.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID BRYAN TURNER, JR., Case No. 20cv0652-AJB (RBB) BOOKING #197347785, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILURE TO vs. STATE A CLAIM UPON WHICH 14 RELIEF MAY BE GRANTED AND COUNTY OF SAN DIEGO, et al., 15 FOR FAILURE TO PROSECUTE IN Defendants. COMPLIANCE WITH COURT 16 ORDER REQUIRING AMENDMENT 17 18 19 On April 2, 2020, Plaintiff David Bryan Turner, Jr., while incarcerated the George 20 Bailey Detention Facility in San Diego, California, filed this civil rights action pursuant to 21 42 U.S.C. § 1983, accompanied by a motion to proceed in forma pauperis. (ECF Nos. 1- 22 2.) Plaintiff alleged that excessive force was used against him by unnamed San Diego 23 County Metropolitan Transit Officers in October 2018, and that unnamed San Diego 24 County Sheriff’s Deputies denied him adequate medical care while he was housed at the 25 George Bailey Detention Facility in March 2020. (ECF No. 1 at 1-6.) On May 11, 2020, 26 the Court denied Plaintiff’s motion to proceed in forma pauperis without prejudice for 27 failure to include required financial documentation. (ECF No. 3.) Plaintiff thereafter filed 28 three motions to proceed in forma pauperis. (ECF Nos. 4, 6, 8.) 1 On June 11, 2020, the Court granted Plaintiff leave to proceed in forma pauperis and 2 screened his Complaint pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A(b). (ECF No. 9.) 3 Those statutes require a Court to sua sponte dismiss a prisoner’s IFP complaint, or any 4 portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages from 5 defendants who are immune. Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en 6 banc); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010). Applying those statutes, 7 the Court found the claims in Plaintiff’s Complaint relating to excessive use of force by 8 the Transit officials were duplicative of several other civil rights cases Plaintiff had filed 9 in this Court, and that the denial of medical care allegations failed to state a claim upon 10 which relief may be granted. (Id. at 7-11.) The Court notified Plaintiff of the deficiencies 11 of his pleading, dismissed the Complaint without prejudice, granted thirty days leave to 12 amend, on or before July 13, 2020, and instructed him that if he failed to timely file an 13 amended complaint the Court would enter a final Order dismissing this action based on his 14 failure to state a claim and failure to prosecute. (Id. at 13, citing Lira v. Herrera, 427 F.3d 15 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix 16 his complaint, a district court may convert the dismissal of the complaint into dismissal of 17 the entire action.”)) 18 On June 24, 2020, Plaintiff filed a motion for appointment of counsel and a request 19 for extension of time to amend. (ECF No. 11.) On August 7, 2020, the Court denied the 20 motion for appointment of counsel and granted Plaintiff an extension of time to amend, on 21 or before October 6, 2020. (ECF No. 12.) The Court repeated its caution that a failure to 22 amend would result in the entry of a final order of dismissal. (Id. at 3-4, citing Lira, 427 23 F.3d at 1169.) 24 Over ten months have elapsed since the time to amend has passed and Plaintiff has 25 not amended in compliance with this Court’s Order or otherwise contacted the Court. This 26 Court has discretion to sua sponte dismiss a case for lack of prosecution or failure to 27 comply with a court order. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); 28 see also Fed. R. Civ. P. 41(b) (providing for involuntary dismissal for failure to prosecute 1 or comply with the federal rules or court order). “The failure of the plaintiff eventually to 2 respond to the court’s ultimatum–either by amending the complaint or by indicating to the 3 court that [he] will not do so–is properly met with the sanction of a Rule 41(b) dismissal.” 4 Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). 5 “In determining whether to dismiss a claim for failure to prosecute or failure to 6 comply with a court order, the Court must weigh the following factors: (1) the public’s 7 interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; 8 (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic 9 alternatives; and (5) the public policy favoring disposition of cases on their merits.” 10 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002), citing Ferdik v. Bonzelet, 963 11 F.2d 1258, 1260-61 (9th Cir. 1992). Because the Court informed Plaintiff of the defects of 12 his pleading and provided ample time to file an amended complaint but he has not amended 13 or contacted the Court, factors one, two and four weigh in favor of dismissal. See Yourish 14 v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (“The public’s interest in 15 expeditious resolution of litigation always favors dismissal.”); Pagtalunan, 291 F.3d at 642 16 (“The trial judge is in the best position to determine whether the delay in a particular case 17 interferes with the docket management and the public interest.”); Nevijel v. North Coast 18 Life Insurance Co., 651 F.2d 671, 674 (9th Cir. 1981) (noting that the court is not required 19 to exhaust all alternatives prior to dismissal). In light of Plaintiff’s failure to contact the 20 Court or otherwise respond to the Court’s prior Order requiring amendment, factor five 21 does not weigh against dismissal. See In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 22 460 F.3d 1217, 1227 (9th Cir. 2006) (the public policy favoring disposition on the merits 23 does not weigh against dismissal where plaintiff’s “conduct impedes progress in that 24 direction.”) Although factor three does not weigh in favor of dismissal, see Pagralunan, 25 291 F.3d at 642 (where defendants have not appeared, “[w]e have previously recognized 26 that pendency of a lawsuit is not sufficiently prejudicial in and of itself to warrant 27 dismissal.”), that factor alone is insufficient to avoid dismissal. See Rio Prop., Inc. v. Rio 28 Int’l Interlink, 284 F.3d 1007, 1022 (9th Cir. 2002) (“While the public policy favoring 1 disposition of cases on their merits weighs against [dismissal], that single factor is not 2 ||enough to preclude imposition of this sanction when the other four factors weigh in its 3 || favor.”’) 4 Weighing these factors, the Court finds dismissal is appropriate. See Hernandez v. 5 || City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (‘we may affirm a dismissal where at 6 ||least four factors support dismissal or where at least three factors ‘strongly’ support 7 || dismissal.”) (internal citation omitted), quoting Ferdik, 963 F.2d at 1263. 8 CONCLUSION AND ORDER 9 Accordingly, the Court DISMISSES this civil action without prejudice pursuant to 10 U.S.C. §§ 1915(e)(2) & 1915A(b) based on Plaintiffs failure to state a claim upon 11 || which relief may be granted, and for failure to prosecute by amending his Complaint as 12 required by Court’s June 11, 2020 and August 7, 2020, Orders requiring amendment. The 13 ||Court DIRECTS the Clerk of Court to enter a final judgment of dismissal and close the 14 || file. 15 IT IS SO ORDERED. 16 || Dated: August 20, 2021 © ¢ 7 Hon. Anthony J. attaglia 18 United States District Judge 19 20 21 22 23 24 25 26 27 28 4