Clinton v. Pollard

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARKEITH CLINTON, Case No.: 3:23-cv-0119-DMS-DEB CDCR #AY1315 12 ORDER DISMISSING CIVIL 13 ACTION FOR FAILING TO Plaintiff, STATE A CLAIM AND FAILING 14 v. TO PROSECUTE 15 16 M. POLLARD, Warden, R. BUCKEL, S. 17 STEADMAN, ASHBURY, CORTEZ, NAHN, CRUZ, C. MOORE, DOES 1-10, 18 Defendants. 19 20 21 On January 20, 2023, Markeith Clinton (“Plaintiff” of “Clinton”), a state inmate 22 proceeding pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983, along with an 23 application to proceed in forma pauperis (“IFP”). ECF Nos. 1, 2. The Court granted 24 Plaintiff’s IFP motion and dismissed his Complaint without prejudice. ECF No. 5. Plaintiff 25 was informed of the pleading deficiencies of his Complaint and granted leave to file an 26 amended complaint. See id. He further notified that if he failed to timely amend, the Court 27 would enter a final judgment of dismissal based on his failure to state a claim and his failure 28 to prosecute in compliance with the court order requiring amendment. Id. at 16, citing Lira 1 v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of 2 the opportunity to fix his complaint, a district court may convert the dismissal of the 3 complaint into dismissal of the entire action.”)). On July 18, 2023, the Court granted 4 Plaintiff’s request for an extension of time to file a First Amended Complaint, giving 5 Plaintiff an additional 45 days (or until September 1, 2023). See ECF No. 7 at 2. 6 The deadline to amend has passed and Plaintiff has not filed an amended complaint. 7 This Court has discretion to sua sponte dismiss a case for lack of prosecution or failure to 8 comply with a court order. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); see 9 also Fed. R. Civ. P. 41(b) (providing for involuntary dismissal for failure to prosecute or 10 comply with the federal rules or court order). “The failure of the plaintiff eventually to 11 respond to the court’s ultimatum–either by amending the complaint or by indicating to the 12 court that [he] will not do so––is properly met with the sanction of a Rule 41(b) dismissal.” 13 Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). 14 “In determining whether to dismiss a claim for failure to prosecute or failure to comply 15 with a court order, the Court must weigh the following factors: (1) the public’s interest in 16 expeditious resolution of litigation; (2) the Court’s need to manage its docket; (3) the risk 17 of prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and 18 (5) the public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 19 291 F.3d 639, 642 (9th Cir. 2002), citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th 20 Cir. 1992). Because the Court has informed Plaintiff of his need to timely amend but he 21 has failed to do so, factors one, two and four weigh in favor of dismissal. See Yourish v. 22 California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (“[T]he public’s interest in 23 expeditious resolution of litigation always favors dismissal.”); Pagtalunan, 291 F.3d at 642 24 (“The trial judge is in the best position to determine whether the delay in a particular case 25 interferes with docket management and the public interest.”); Nevijel v. North Coast Life 26 Insurance Co., 651 F.2d 671, 674 (9th Cir. 1981) (a court is not required to exhaust all 27 alternatives prior to dismissal). Factor five does not weigh against dismissal. See In re 28 Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 1217, 1227 (9th Cir. 2006) 1 (stating the public policy favoring disposition on the merits does not weigh against 2 || dismissal where plaintiff's ““conduct impedes progress in that direction’). Only factor three 3 || does not weigh in favor of dismissal. See Pagtalunan, 291 F.3d at 642 (where defendants 4 ||have not appeared, “[w]e have previously recognized that pendency of a lawsuit is not 5 || sufficiently prejudicial in and of itself to warrant dismissal.’’) 6 Weighing these factors, the Court finds entry of a final judgment of dismissal is 7 ||appropriate. See Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (“We 8 || may affirm a dismissal where at least four factors support dismissal, or where at least three 9 || factors ‘strongly’ support dismissal.”’) (internal citation omitted), quoting Ferdik, 963 F.2d 10 || at 1263. 1] CONCLUSION AND ORDER 12 The Court DISMISSES this civil action without prejudice based on Plaintiff's failure 13 || to state a claim upon which relief may be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B) 14 1915A(b), and for failure to prosecute by failing to file an amended complaint as 15 required by the Court’s May 17, 2023, Order. The Court DIRECTS the Clerk of Court to 16 || enter a final judgment of dismissal and close the file. 17 || IT IS SO ORDERED. 18 || Dated: October 20, 2023 » Yim WN. 19 Hon. Dana M. Sabraw, Chief Judge □ 0 United States District Court 21 22 23 24 25 26 27 28