Michael Harmon McLemore v. Gregory Ahern, et al.
- Proceeding
- district
- Area
- civil
- Panel
- Dana M. Sabraw (author)
Analysis
The court considered a pro se plaintiff's failure to file an amended complaint within the deadline set by a previous order. The court dismissed the action without prejudice for failure to prosecute and failure to state a claim.
| What the court decided | The model |
|---|---|
Dismissal of the civil action without prejudice“Accordingly, the Court DISMISSES this action without prejudice based on Plaintiff’s failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B), and for failure to prosecute by failing to file an amended complaint as required by the Court’s February 20, 2025 Order.” | agree with court The court correctly applied the Ninth Circuit's five-factor test for dismissal for failure to prosecute (Pagtalunan v. Galaza). The record indicates the plaintiff was given leave to amend and failed to do so, satisfying the requirements for dismissal under Rule 41(b) and 28 U.S.C. § 1915(e)(2)(B). The court weighed the factors and found sufficient support for dismissal. |
The order itself: sound — The order correctly identifies the legal standard for dismissal for failure to prosecute in the Ninth Circuit. It applies the five-factor test from Pagtalunan v. Galaza, citing appropriate precedent for each factor. The court notes that the plaintiff failed to file an amended complaint after being granted leave, which is a clear failure to comply with a court order. The weighing of the factors is consistent with Ninth Circuit precedent, particularly regarding the public interest in expeditious resolution and docket management. The dismissal is without prejudice, allowing the plaintiff to file a new complaint, which is a standard remedy in such cases.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 25-cv-00257-DMS-DEB MICHAEL HARMON MCLEMORE, 12 Plaintiff, ORDER DISMISSING CIVIL 13 v. ACTION 14 GREGORY AHERN, et al., 15 Defendants. 16 17 18 On February 5, 2025, Plaintiff Michael Harmon McLemore, proceeding pro se, filed 19 this action, along with an application to proceed in forma pauperis (“IFP”). (ECF Nos. 1, 20 2.) On February 20, 2025, the Court granted Plaintiff’s IFP motion and dismissed his 21 Complaint without prejudice. (ECF No. 3.) Plaintiff was informed of the pleading 22 deficiencies of his Complaint and granted leave to file an amended complaint within thirty 23 (30) days. (See id.) The deadline to amend has long passed, and Plaintiff has not filed an 24 amended complaint. 25 This Court has discretion to sua sponte dismiss a case for lack of prosecution or 26 failure to comply with a court order. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 27 1986); see also Fed. R. Civ. P. 41(b) (providing for involuntary dismissal for failure to 28 prosecute or comply with the federal rules or court order). “The failure of the plaintiff 1 eventually to respond to the court’s ultimatum—either by amending the complaint or by 2 indicating to the court that [he] will not do so––is properly met with the sanction of a Rule 3 41(b) dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). 4 “In determining whether to dismiss a claim for failure to prosecute or failure to 5 comply with a court order, the Court must weigh the following factors: (1) the public’s 6 interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 7 (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic 8 alternatives; and (5) the public policy favoring disposition of cases on their merits.” 9 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 10 F.2d 1258, 1260–61 (9th Cir. 1992)). Because the Court has informed Plaintiff of his need 11 to timely amend but he has failed to do so, factors one, two and, four weigh in favor of 12 dismissal. See Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (holding “the 13 public’s interest in expeditious resolution of litigation always favors dismissal”); 14 Pagtalunan, 291 F.3d at 642 (holding the “trial judge is in the best position to determine 15 whether the delay in a particular case interferes with docket management and the public 16 interest”); Nevijel v. North Coast Life Insurance Co., 651 F.2d 671, 674 (9th Cir. 1981) 17 (holding a court is not required to exhaust all alternatives prior to dismissal). Factor five 18 does not weigh against dismissal. See In re Phenylpropanolamine (PPA) Prods. Liab. 19 Litig., 460 F.3d 1217, 1227 (9th Cir. 2006) (stating the public policy favoring disposition 20 on the merits does not weigh against dismissal where plaintiff’s “conduct impedes progress 21 in that direction”). Only factor three does not weigh in favor of dismissal. See Pagtalunan, 22 291 F.3d at 642 (where defendants have not appeared, “[w]e have previously recognized 23 that pendency of a lawsuit is not sufficiently prejudicial in and of itself to warrant 24 dismissal”). 25 Weighing these factors, the Court finds entry of a final judgment of dismissal is 26 appropriate. See Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (“We 27 may affirm a dismissal where at least four factors support dismissal, or where at least three 28 factors ‘strongly’ support dismissal.” (citations omitted)). 1 Accordingly, the Court DISMISSES this action without prejudice based on 2 || Plaintiff’s failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. 3 ||§ 1915(e)(2)(B), and for failure to prosecute by failing to file an amended complaint as 4 ||required by the Court’s February 20, 2025 Order. If Plaintiff still wishes to pursue his 5 claims, he must file a new complaint. 6 IT IS SO ORDERED. 7 || Dated: January 16, 2026 9 Hon. Dana M. Sabraw United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28