Chad Whittington v. Jason Black ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 CHAD WHITTINGTON, ) Case No. CV 23-6164-MWF (JPR) ) 11 Plaintiff, ) ORDER DISMISSING ACTION FOR ) FAILURE TO PROSECUTE AND FAILURE 12 v. ) TO STATE A CLAIM ) 13 JASON BLACK et al., ) ) 14 Defendants. ) ) 15 ) 16 On July 19, 2023, Plaintiff filed a civil-rights Complaint 17 challenging the administration of antipsychotic medication to him 18 at Atascadero State Hospital in San Luis Obispo. On October 16, 19 2023, the Court dismissed the Complaint with leave to amend, 20 explaining that Plaintiff had failed to state a claim. 21 Meanwhile, however, he was apparently transferred back to jail 22 from the state hospital to await trial, and it is not clear 23 whether administration of the drugs continued. (See Change 24 Address, ECF No. 9.) He was subsequently released from jail and 25 apparently is no longer incarcerated. (See Change Address, ECF 26 No. 11.) 27 The Court gave Plaintiff 28 days to file an amended 28 complaint, but to date he has neither done so nor requested an 1 1 extension of time. The order dismissing the Complaint was not 2 returned as undeliverable, so Plaintiff appears to have received 3 it. And the order warned him that if he “fail[ed] to timely file 4 a sufficient” amended complaint, his lawsuit could be dismissed. 5 (Order, ECF No. 10 at 12.) 6 Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (per 7 curiam), examined when it is appropriate to dismiss a pro se 8 plaintiff’s lawsuit for failure to prosecute. See also Link v. 9 Wabash R.R., 370 U.S. 626, 629-30 (1962) (“The power to invoke 10 [dismissal] is necessary in order to prevent undue delays in the 11 disposition of pending cases and to avoid congestion in the 12 calendars of the District Courts.”). A court must consider “(1) 13 the public’s interest in expeditious resolution of litigation; 14 (2) the court’s need to manage its docket; (3) the risk of 15 prejudice to the defendants; (4) the public policy favoring 16 disposition of cases on their merits[;] and (5) the availability 17 of less drastic sanctions.” Carey, 856 F.2d at 1440. 18 Unreasonable delay creates a rebuttable presumption of prejudice 19 to the defendants that can be overcome only with an affirmative 20 showing of just cause by the plaintiff. See In re Eisen, 31 F.3d 21 1447, 1452-53 (9th Cir. 1994). 22 Here, the first, second, third, and fifth Carey factors 23 militate in favor of dismissal. In particular, Plaintiff has 24 offered no explanation for his failure to file an amended 25 complaint fixing the deficiencies identified by the Court. Thus, 26 he has not rebutted the presumption of prejudice to Defendants. 27 No less drastic sanction is available, as the Complaint fails to 28 state a claim and therefore cannot proceed, and Plaintiff is 2 1} unable or unwilling to comply with the instructions for fixing allegations. Indeed, now that he has apparently been 3 || released from jail, he may no longer wish to pursue his claim. And because his lawsuit cannot go forward in its current form, 5 |} the Court is unable to manage its docket. Although the fourth 61 Carey factor weighs against dismissal — as it always does — 7 || together the other factors outweigh the public’s interest in 8 || disposing of the case on its merits. See Ferdik v. Bonzelet, 963 9 F.2d 1258, 1261-63 (9th Cir. 1992) (as amended) (upholding 10 | dismissal of pro se civil-rights action for failure to timely 11 |] file amended complaint remedying deficiencies in caption); 12 | Baskett v. Quinn, 225 F. App’x 639, 640 (9th Cir. 2007) 13 || (upholding dismissal of pro se civil-rights action for failure to 14 | state claim or timely file amended complaint). 15 ORDER 16 Accordingly, this action is dismissed for failure to 17 || prosecute and failure to state a claim. 18 LET JUDGMENT BE ENTERED ACCORDINGLY. J 0. Wy fp hi 20 || DATED: March 11, 2024 Ah Kee} Wf Whe MICHAEL W. [FITZGERALY 21 United States Dis t Judge 22 23 || Presented by: 24 hrendato- an Rosenbluth Magistrate Judge 26 27 28