Xavier Nailing v. Anderson

• Court: District Court, C.D. California
• Decided: January 10, 2022
• Docket: 2:21-cv-05039
• Status: Unknown

Opinion

Case 2:21-cv-05039-AB-JC Document 9 Filed 01/10/22 Page 1 of 6 Page ID #:57

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 XAVIER NAILING, Case No. 2:21-cv-05039-AB-JC 12 Plaintiff, MEMORANDUM OPINION AND 13 ORDER DISMISSING ACTION v. 14 ANDERSON and HOPEWOOD, 15 16 Defendants. 17 I. BACKGROUND AND SUMMARY 18 On June 21, 2021, plaintiff Xavier Nailing, who is at liberty, is proceeding 19 pro se, and has been granted leave to proceed without prepayment of the filing fee 20 (“IFP”), filed a Civil Rights Complaint (“Complaint” or “Comp.”) pursuant to 21 42 U.S.C. § 1983 (“Section 1983”). (Docket Nos. 1, 5). Plaintiff claims that the 22 defendants – Los Angeles Police Officers Anderson and Hopewood – violated 23 plaintiff’s constitutional rights by illegally arresting him and being deliberately 24 indifferent to his medical needs. (Comp. at 2-7). Plaintiff sues both defendants in 25 their individual and official capacities and seeks monetary relief. (Comp. at 8). 26 As plaintiff is proceeding IFP, the assigned Magistrate Judge screened the 27 Complaint to determine if the action is frivolous or malicious, fails to state a claim 28 Case 2:21-cv-05039-AB-JC Document 9 Filed 01/10/22 Page 2 of 6 Page ID #:58

1 on which relief may be granted, or seeks monetary relief against a defendant who is 2 immune from such relief. See 28 U.S.C. § 1915(e)(2)(B). 3 On November 19, 2021, the Magistrate Judge issued an Order Dismissing 4 Complaint with Leave to Amend and Directing Plaintiff to Respond to Order 5 (“November Order”).1 (Docket No. 8). The November Order advised plaintiff that 6 the Complaint was deficient for reasons described in the November Order, 7 dismissed the Complaint with leave to amend, and directed plaintiff, within fourteen 8 days (i.e., by December 3, 2021), to file one of the following: (1) a first amended 9 complaint which cures the pleading defects described in the November Order; (1) a 10 notice of dismissal; or (3) a notice of intent to stand on the Complaint.2 The 11 12 1Absent consent by all parties, including unserved defendants, a magistrate judge cannot 13 issue dispositive orders, including an order dismissing a claim. Branch v. Umphenour, 936 F.3d 994, 1004 (9th Cir. 2019); see also Williams v. King, 875 F.3d 500, 504 (9th Cir. 2017) 14 (“[C]onsent of all parties (including unserved defendants) is a prerequisite to a magistrate judge’s jurisdiction to enter dispositive decisions under § 636(c)(1).”); 28 U.S.C. § 15 636(b)(1)(A)-(B). However, “the dismissal of a complaint with leave to amend is a 16 non-dispositive matter.” McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). Accordingly, a magistrate judge may dismiss a complaint with leave to amend without the approval of a district 17 judge. See id. at 797. Additionally, a plaintiff who disagrees with a magistrate judge’s order, 18 including a nondispositive order dismissing a pleading with leave to amend, may file an objection with the district judge. See Bastidas v. Chappell, 791 F.3d 1155, 1162 (9th Cir. 2015); 19 see also Hunt v. Pliler, 384 F.3d 1118, 1124 (9th Cir. 2004) (“District court review of even these nondispositive matters . . . can be compelled upon objection of the party against whom the 20 magistrate has ruled.”) (quoting McKeever, 932 F.2d at 798). The November Order expressly 21 notified plaintiff that (1) the November Order constituted non-dispositive rulings on pretrial matters; (2) to the extent a party disagreed with such non-dispositive rulings, such party may 22 seek review from the District Judge within fourteen (14) days; (3) to the extent a party believed that the rulings were dispositive, rather than non-dispositive, such party had the right to object to 23 the determination that the rulings were non-dispositive within fourteen (14) days; and (4) a party 24 would be foreclosed from challenging the rulings in the November Order if such party did not seek review thereof or object thereto. (November Order at 15 n.3). 25 2Specifically, the Magistrate Judge advised plaintiff, albeit in greater detail and with 26 citation to authorities, that the Complaint, among other deficiencies: (1) failed to state a viable 27 Fourth Amendment false arrest/detention claim; (2) failed to state a viable Fourteenth Amendment equal protection claim; (3) failed to state a viable Fourteenth Amendment claim for 28 (continued...) 2 Case 2:21-cv-05039-AB-JC Document 9 Filed 01/10/22 Page 3 of 6 Page ID #:59

1 November Order expressly cautioned plaintiff that the failure timely to file a first 2 amended complaint, a notice of dismissal, or a notice of intent to stand on the 3 Complaint may be deemed plaintiff’s admission that amendment is futile and may 4 result in the dismissal of this action on the grounds set forth in the November 5 Order, on the ground that amendment is futile, for failure diligently to prosecute, 6 and/or for failure to comply with the November Order. The foregoing December 3, 7 2021 deadline expired without any action by plaintiff. Plaintiff has not sought 8 review of, or filed any objection to the November Order and has not communicated 9 with the Court in this action since the November Order was issued. 10 As discussed below, this action is dismissed due to plaintiff’s failure to state 11 a claim for relief, his unreasonable failure to prosecute and his failure to comply 12 with the November Order. 13 II. PERTINENT LAW 14 It is well-established that a district court may sua sponte dismiss an action 15 where the plaintiff has failed to comply with a court order and/or unreasonably 16 failed to prosecute. See Link v. Wabash Railroad Co., 370 U.S. 626, 629-33 17 (1962); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.) (as amended), cert. 18 denied, 506 U.S. 915 (1992); see also McKeever v. Block, 932 F.2d 795, 797 (9th 19 Cir. 1991) (district court may sua sponte dismiss action “only for an unreasonable 20 failure to prosecute”) (citations omitted); see also Edwards v. Marin Park, Inc., 356 21 F.3d 1058, 1065 (9th Cir. 2004) (sua sponte dismissal pursuant to Fed. R. Civ. P. 22 41(b) proper sanction in cases where a plaintiff is notified of deficiencies in 23 complaint and is given “the opportunity to amend [the complaint] or be dismissed” 24 but the plaintiff “[does] nothing”) (citations omitted; emphasis in original). 25 /// 26 27 2(...continued) deprivation of plaintiff’s right to medical care; and (4) failed to state a claim against defendants 28 in their official capacities. 3 Case 2:21-cv-05039-AB-JC Document 9 Filed 01/10/22 Page 4 of 6 Page ID #:60

1 In determining whether to dismiss an action for failure to prosecute or failure 2 to comply with court orders, a district court must consider several factors, namely 3 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 4 to manage its docket; (3) the risk of prejudice to defendants; (4) the public policy 5 favoring disposition of cases on their merits; and (5) the availability of less drastic 6 alternatives. See In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994) (failure to 7 prosecute); Ferdik, 963 F.2d at 1260-61 (failure to comply with court orders). 8 Dismissal is appropriate under the foregoing analysis “where at least four factors 9 support dismissal . . . or where at least three factors ‘strongly’ support dismissal.” 10 Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citations 11 omitted). 12 Where a plaintiff is proceeding pro se, however, the court must first notify 13 the plaintiff of the deficiencies in the complaint so that the plaintiff has an 14 opportunity “to amend effectively.” Ferdik, 963 F.2d at 1261 (citation omitted). In 15 addition, where a Magistrate Judge originally dismissed the complaint with leave to 16 amend, the District Judge must review that decision before dismissing the entire 17 action. See McKeever, 932 F.2d at 797 (“While the magistrate can dismiss 18 complaints with leave to amend, the district court necessarily must review that 19 decision before dismissing the entire action.”). A district judge may not dismiss an 20 action for failure to comply with a court order (e.g., the Magistrate Judge’s order to 21 file an amended complaint) or for unreasonable failure to prosecute if the initial 22 decision to dismiss a complaint was erroneous. Yourish v. California Amplifier, 23 191 F.3d 983, 992 (9th Cir. 1999) (citing id.). 24 III. DISCUSSION AND ORDER 25 First, the Court has reviewed the November Order and finds that it adequately 26 and properly notified plaintiff of the deficiencies in the Complaint and afforded him 27 an opportunity to amend effectively. This Court agrees with and 28 /// 4 Case 2:21-cv-05039-AB-JC Document 9 Filed 01/10/22 Page 5 of 6 Page ID #:61

1 adopts the November Order, and finds that the Magistrate Judge properly dismissed 2 the Complaint with leave to amend for the reasons discussed therein. 3 Second, as explained in the November Order, the Complaint fails to state a 4 claim for relief against any defendant. The November Order explained in detail 5 what plaintiff needed to do to cure the deficiencies in his pleading, ordered plaintiff 6 to respond to the November Order by filing a first amended complaint which cured 7 the identified pleading defects, or filing a notice of dismissal, or filing a notice of 8 intent to stand on Complaint, and cautioned plaintiff that his failure timely to 9 respond to the November Order may be deemed his admission that amendment is 10 futile and may result in the dismissal of this action on the grounds identified in the 11 November Order, on the ground that amendment is futile, for failure diligently to 12 prosecute, and/or for failure to comply with the November Order. In light of 13 plaintiff’s failure to file any response to the November Order as expressly directed 14 or to communicate with the Court since its issuance, this Court deems such failure 15 plaintiff’s admission that amendment of the Complaint is futile and concludes that 16 plaintiff is unable or unwilling to draft a complaint that states viable claims for 17 relief. See, e.g., Knapp v. Hogan, 738 F.3d 1106, 1110 (9th Cir. 2013) (“When a 18 litigant knowingly and repeatedly refuses to conform his pleadings to the 19 requirements of the Federal Rules, it is reasonable to conclude that the litigant 20 simply cannot state a claim.”) (emphasis in original), cert. denied, 574 U.S. 815 21 (2014). Accordingly, dismissal of the instant action based upon plaintiff’s failure to 22 state a claim is appropriate. 23 Third, dismissal is appropriate based upon plaintiff’s failure to comply with 24 the November Order and the failure to prosecute. The Court has considered the five 25 factors discussed above – the public’s interest in expeditious resolution of litigation, 26 the court’s need to manage its docket, the risk of prejudice to defendants, the public 27 policy favoring disposition of cases on their merits, and the availability of less 28 drastic alternatives. The first two factors – the public’s interest in expeditiously 5 Case 2:21-cv-05039-AB-JC Document9 Filed 01/10/22 PageGof6 Page ID #:62

1 || resolving this litigation and the Court’s interest in managing the docket — strongly 2 || weigh in favor of dismissal. As noted above, plaintiff has been notified of the 3 || deficiencies in the Complaint and has been given the opportunity to amend it, to 4 || dismiss it, or to notify the Court that he wishes to stand thereon. He has done 5 || nothing. See Edwards, 356 F.3d at 1065. The third factor, risk of prejudice to 6 || defendants, also weighs strongly in favor of dismissal. See Anderson v. Air West, 7 || Inc., 542 F.2d 522, 524 (9th Cir. 1976) (prejudice to defendants presumed from 8 || unreasonable delay) (citation omitted). The fourth factor, the public policy favoring 9 || disposition of cases on their merits, is greatly outweighed by the factors in favor of 10 || dismissal discussed herein. As for the fifth factor, since plaintiff has already been 11 || cautioned of the consequences of his failure to prosecute and his failure to comply 12 || with the November Order, and plaintiff has been afforded the opportunity to avoid 13 || such consequences but has not responded, no sanction lesser than dismissal is 14 |] feasible. See, e.g., Yourish, 191 F.3d at 989 (dismissal of action with prejudice not 15 || excessive sanction for plaintiffs’ failure timely to comply with court’s order to 16 || submit an amended complaint). 17 IT IS THEREFORE ORDERED that this action is dismissed based upon 18 || plaintiff's failure to state a claim, his unreasonable failure to prosecute and his 19 || failure to comply with the November Order. 20 IT IS SO ORDERED. 21 || DATED: January 10, 2022 22 lV 23 24 HONORABLE ANDRE BIROTTE JR. 95 UNITED STATES DISTRICT JUDGE

26 27 28