Leonardo Magallon v. Bureau of Prisons ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 9 10 LEONARDO MAGALLON, Case No. 2:21-cv-1540-VAP (MAR) 11 Petitioner, MEMORANDUM AND ORDER DISMISSING CASE 12 v. 13 BUREAU OF PRISONS, ET AL., 14 Defendant(s). 15 16 17 I. 18 INTRODUCTION 19 On February 4, 2021, Plaintiff Leonardo Magallon (“Plaintiff”) constructively 20 filed1 a pro se Civil Rights Complaint (“Complaint”) pursuant to Bivens v. Six 21 Unknown Named Agents of Federal Bureau of Narcotics (“Bivens”), 403 U.S. 388 22 (1971). ECF Docket No. (“Dkt.”) 1. On March 12, 2021, the Court issued an Order 23 Dismissing the Complaint with Leave to Amend (“ODLA”), granting Plaintiff twenty 24 (20) days to file a First Amended Complaint (“FAC”). Dkt. 8 at 11–12. On March 25 26 1 Under the “mailbox rule,” when a pro se inmate gives prison authorities a pleading to mail to court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v. Marshall, 627 27 F.3d 768, 770 n.1 (9th Cir. 2010) (citation omitted); see also Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (stating the “mailbox rule applies to § 1983 suits filed by pro se prisoners”); Van 1 23, 2021, Plaintiff constructively filed his FAC, which the Court dismissed with leave 2 to amend on May 4, 2021, granting Plaintiff twenty-one (21) days to file a Second 3 Amended Complaint (“SAC”). Dkts. 10; 12 at 17. 4 On September 3, 2021, the Court granted Plaintiff a thirty (30) day extension to 5 file his SAC, by October 4, 2021. Dkt. 17 at 1. The Court’s September 3, 2021 Order 6 explicitly warned that “Plaintiff’s failure to comply with this Order will result in the 7 dismissal of this Action.” Id. (emphasis in original). On October 26, 2021, the Court 8 granted Plaintiff an additional thirty (30) days to file the SAC, again warning Plaintiff 9 that “failure to comply with this Order will result in the dismissal of this Action.” 10 Dkt. 18 at 1. 11 To date, Plaintiff has not filed a SAC. For the reasons below, the Court 12 DISMISSES this action, without prejudice. 13 II. 14 BACKGROUND 15 On February 4, 2021, Plaintiff, proceeding pro se and in forma pauperis 16 (“IFP”), constructively filed a Civil Rights Complaint pursuant to Bivens. Dkt. 1. On 17 March 12, 2021, the Court issued an ODLA, granting Plaintiff twenty (20) days to file 18 a FAC. Dkt. 8 at 11–12. On March 23, 2021 Plaintiff constructively filed his First 19 Amended Complaint. Dkt. 10. On May 4, 2021, the Court issued an ODLA 20 dismissing the FAC. Dkt. 12 at 17. The Court’s ODLA cautioned Plaintiff that 21 failure to comply with the ODLA “may result in this action being dismissed with or 22 without prejudice[.]” Id. at 19. 23 On May 28, 2021, Plaintiff constructively filed a Request for Extension of 24 Time to file a SAC. Dkt. 13. On June 9, 2021, the Court granted Plaintiff’s Request 25 for Extension of Time, giving Plaintiff an additional thirty (30) days to file his SAC. 26 Dkt. 14. 27 On July 23, 2021, the Court issued an Order to Show Cause (“OSC”) why the 1 “[f]ailure to respond to the Court’s Order may result in the dismissal of the action.” 2 Dkt. 15 at 2 (emphasis added). On August 17, 2021, Plaintiff filed what the Court 3 construed as a Request for Extension of Time to file a SAC. Dkt. 16. On September 4 3, 2021, the Court granted Plaintiff’s Request for Extension of Time, giving him 5 another thirty (30) days to file his SAC and warning him that “Plaintiff’s failure to 6 comply with this Order will result in the dismissal of this Action.” Dkt. 17 at 1 7 (emphasis in original). 8 On October 26, 2021, the Court granted Plaintiff an additional thirty (30) days 9 to file the SAC, again warning that “failure to comply with this Order will result in the 10 dismissal of this Action.” Dkt. 18 at 1. Plaintiff has not corresponded with the Court 11 at all since August 17, 2021. 12 III. 13 DISCUSSION 14 A. APPLICABLE LAW 15 District courts have sua sponte authority to dismiss actions for failure to 16 prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. Wabash 17 R.R. Co., 370 U.S. 626, 629–30 (1962); Hells Canyon Pres. Council v. U.S. Forest 18 Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating courts may dismiss an action under 19 Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute 20 or comply with the Federal Rules of Civil Procedure or the court’s orders); Ferdik v. 21 Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (ordering dismissal for failure to 22 comply with court orders). 23 In deciding whether to dismiss for failure to prosecute or comply with court 24 orders, a district court must consider five (5) factors: “(1) the public’s interest in 25 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 26 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases 27 on their merits; and (5) the availability of less drastic sanctions.” Omstead v. Dell, 1 Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson v. Duncan, 779 F.2d 2 1421, 1423 (9th Cir. 1986)). 3 “[The Ninth Circuit] ‘may affirm dismissal where at least four factors support 4 dismissal . . . or where at least three factors “strongly” support dismissal.’ ” Yourish 5 v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (quoting Hernandez v. City 6 of El Monte, 138 F.3d 393, 399 (9th Cir. 1998)). In a case involving sua sponte 7 dismissal, however, the fifth Henderson factor regarding the availability of less drastic 8 sanctions warrants special focus. Hernandez, 138 F.3d at 399. 9 B. ANALYSIS 10 1. The public’s interest in expeditious resolution of litigation 11 In the instant action, the public’s interest in expeditious resolution of litigation 12 weighs in favor of dismissal. See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 13 2002) (“The public’s interest in expeditious resolution of litigation always favors 14 dismissal.” (quoting Yourish, above) (internal quotation omitted)). Plaintiff has not 15 filed a Second Amended Complaint in compliance with the Court’s May 4, 2021 16 ODLA or otherwise responded to the Court’s September 3, 2021 Minute Order and 17 the Court’s October 26, 2021 Order to Show Cause. Dkts. 12; 17; 18. In fact, 18 Plaintiff has not corresponded with the Court at all since he filed his Request for 19 Extension of Time on August 17, 2021. Dkt. 16. Given that Plaintiff has failed to 20 interact with the Court for over three (3) months, this factor weighs in favor of 21 dismissal. See Dkt. 16; see also Pagtalunan, 291 F.3d at 642 (finding that the 22 plaintiff’s failure to pursue the case for almost four (4) months weighed in favor of 23 dismissal). 24 2. The Court’s need to manage its docket 25 The second factor—the Court’s need to manage its docket—likewise weighs in 26 favor of Dismissal. Courts have “the power to manage their dockets without being 27 subject to the endless vexatious noncompliance of litigants.” See Ferdik, 963 F.2d at 1 . time that could have been devoted to other cases on the [Court’s] docket.” See 2 Pagtalunan, 291 F.3d at 642; Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th 3 Cir. 2004) (“[R]esources continue to be consumed by a case sitting idly on the court's 4 docket.”). 5 On May 4, 2021, the Court issued an Order Dismissing the First Amended 6 Complaint with Leave to Amend ordering Plaintiff to file a SAC within twenty-one 7 (21) days of the service date of the Order. Dkt. 12. The ODLA explicitly cautioned 8 Plaintiff “failure to timely file a Second Amended Complaint . . . may result in this 9 action being dismissed with or without prejudice[.]” Id. at 19. 10 On July 23, 2021, after Plaintiff failed to respond to the ODLA, the Court 11 issued an OSC why the Complaint should not be dismissed for lack of prosecution. 12 Dkt. 15. The Court’s July 23, 2021 OSC cautioned Plaintiff that failure to comply 13 may result in dismissal for lack of prosecution. Id. at 2. On August 17, 2021, Plaintiff 14 filed a Request for Extension of Time, which the Court granted on September 3, 15 2021, warning Plaintiff that failure to respond will result in dismissal. Dkts. 16; 17 at 16 1. On October 26, 2021, the Court issued an Order to Show Cause, giving Plaintiff 17 an additional thirty (30) days to file his SAC and again warning Plaintiff that failure to 18 comply with the Order would result in dismissal of this Action. Dkt. 18 at 1. 19 Plaintiff has failed to comply, or otherwise respond, to any of the Court’s 20 Orders, all of which warned Plaintiff that his failure to comply could or would result 21 in the recommended dismissal of his First Amended Complaint. See Dkts. 12 at 19; 22 15 at 2; 17 at 1; 18 at 1. Plaintiff’s failure to prosecute and follow Court Orders 23 hinders the Court’s ability to move this case toward disposition and suggests Plaintiff 24 does not intend to or cannot litigate this action diligently. Consequently, the Court’s 25 need to manage its docket favors dismissal here. 26 3. The risk of prejudice to Defendant 27 The third factor—prejudice to Defendant(s)—also weighs in favor of dismissal. 1 unreasonably delay prosecution of an action. See In re Eisen, 31 F.3d 1447, 1452–53 2 (9th Cir. 1994) (“[T]he failure to prosecute diligently is sufficient by itself to justify 3 dismissal . . . [t]he law presumes injury from unreasonable delay.”). 4 Nothing suggests such a presumption is unwarranted in this case. Plaintiff has 5 not provided any reason for his failure to comply with either the Court’s ODLA, OSs, 6 or Minute Order and for his failure to communicate with the Court since he filed his 7 Request on August 17, 2021. Dkt. 16. Given the length of the delay, the Court finds 8 Plaintiff’s delay in prosecuting this case to be unreasonable. Thus, prejudice is 9 presumed and weighs in favor of dismissal. See, e.g., In re Phenylpropanolamine 10 (PPA) Prod. Liab. Litig., 460 F.3d at 1227 (“The law . . . presumes prejudice from 11 unreasonable delay.”). 12 4. Public policy favoring disposition on the merits 13 The fourth factor—public policy in favor of deciding cases on the merits— 14 ordinarily weighs against dismissal. See In re Phenylpropanolamine (PPA) Prod. Liab. 15 Litig., 460 F.3d at 1228. Here, as it usually does, the fourth factor weighs against 16 dismissal. It is, however, Plaintiff’s responsibility to move towards disposition at a 17 reasonable pace and avoid dilatory and evasive tactics. See Morris v. Morgan Stanley, 18 942 F.2d 648, 652 (9th Cir. 1991). Plaintiff has not discharged this responsibility 19 despite having been: (1) instructed on his responsibilities; (2) granted sufficient time 20 in which to discharge them; and (3) warned of the consequences of failure to do so. 21 See Dkts. 12 at 19; 15 at 2; 17 at 1; 18 at 1. Under these circumstances, and without 22 any other information from Plaintiff, the policy favoring resolution of disputes on the 23 merits does not outweigh Plaintiff’s failure to obey Court Orders or to file responsive 24 documents within the time granted. 25 5. Availability of less drastic alternatives 26 The fifth factor—availability of less drastic sanctions—also weighs in favor of 27 dismissal. A “district court need not exhaust every sanction short of dismissal before 1 | Henderson, 779 F.2d at 1424. Less drastic alternatives to dismissal include warning a 2 | party that dismissal could result from failure to obey a court order. See Malone, 833 3 | F.2d at 132 n.1. Further, “a district court’s warning to a party that his [or her] failure 4 | to obey the court’s order will result in dismissal can satisfy the ‘consideration of 5 | alternatives’ requirement.” Ferdik, 963 F.2d at 1262 (citations omitted). 6 Here, the Court cannot move the case toward disposition without Plaintiffs 7 | compliance with Court Orders or participation in this litigation. Plaintiff has shown 8 | he is either unwilling or unable to comply with Court Orders by filing responsive 9 | documents or otherwise cooperating in prosecuting this action. Given this record, the 10 | Court finds that any less drastic alternatives to dismissal would be inadequate to 11 | remedy Plaintiffs failures to obey Court Orders and to prosecute. 12 6. Summary 13 Finally, while dismissal should not be entered unless Plaintiff has been notified 14 | dismissal is imminent, see W. Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 15 | 1523 9th Cir. 1990), the Court has warned Plaintiff about the potential that his FAC 16 | could or would be dismissed. See Dkts. 12 at 19; 15 at 2; 17 at 1; 18 at 1. 17 As discussed above, four (4) of the Rule 41(b) factors weigh in favor of 18 | dismissal. Accordingly, this action is subject to dismissal. 19 IV. 20 ORDER 21 IT IS THEREFORE ORDERED THAT Petitioner’s case is DISMISSED 22 | without prejudice. 23 | Dated: December 1, 2021 Vigra OW. Phys, HORpesLe VIRGINIA APR 26 | Presented by: at | 28 Maited States Magistrate Judge