Ernest Lee Allen v. Reed ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ERNEST LEE ALLEN, Case No. 2:19-cv-09774-VBF-JC 12 Plaintiff, MEMORANDUM OPINION AND 13 v. ORDER DISMISSING ACTION 14 REED, et al., 15 Defendants. 16 17 I. BACKGROUND AND SUMMARY 18 On November 14, 2019, plaintiff Ernest Lee Allen, who is in custody, is 19 proceeding pro se, and has been granted leave to proceed without prepayment of 20 the filing fee (“IFP”), filed a Civil Rights Complaint (“Complaint”) pursuant to 21 42 U.S.C. § 1983 against four correctional officers at California Men’s Colony East 22 in San Luis Obispo, California. 23 As plaintiff is a prisoner proceeding IFP on a civil rights complaint against 24 governmental defendants, the assigned Magistrate Judge screened the Complaint to 25 determine if the action is frivolous or malicious, fails to state a claim on which 26 relief may be granted, or seeks monetary relief against a defendant who is immune 27 from such relief. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A; 42 U.S.C. §1997e(c). 28 On March 13, 2020, the Magistrate Judge issued an Order Dismissing 2 || Complaint with Leave to Amend and Directing Plaintiff to Respond to Order 3 || (“March Order”).’ The March Order advised plaintiff that the Complaint was 4 || deficient for reasons described in the March Order, dismissed the Complaint with 5 || leave to amend, and directed plaintiff, within fourteen days (i.e., by March 27, 6 || 2020), to file one of the following: (1) a first amended complaint which cures the 7 || pleading defects described in the March Order; (1) a notice of dismissal; or (3) a 8 || notice of intent to stand on the Complaint.” The March Order expressly cautioned 10 ‘Absent consent by all parties, including unserved defendants, a magistrate judge cannot y 11 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) 12 || C‘[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. § 636(b)(1)(A)-(B). 13 However, “the dismissal of a complaint with leave to amend is a non-dispositive matter.” 14 || McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991) (emphasis added). Accordingly, a magistrate judge may dismiss a complaint with leave to amend without the approval of a district 15 judge. See id. at 797 (“While the magistrate can dismiss complaints with leave to amend, the 16 district court necessarily must review that decision before dismissing the entire action.”). Additionally, a plaintiff who disagrees with a magistrate judge’s order, including a 17 || 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); see also Hunt v. 18 Pliler, 384 F.3d 1118, 1124 (9th Cir. 2004) (“District court review of even these nondispositive 19 || matters .. . can be compelled upon objection of the party against whom the magistrate has ruled.) (quoting McKeever, 932 F.2d at 798). The March Order expressly notified plaintiff that 20 (1) the March Order constituted non-dispositive rulings on pretrial matters; (2) to the extent a | Party disagreed with such non-dispositive rulings, such party may seek review from the District Judge within a specified time frame; (3) to the extent a party believed that the rulings were 22 || dispositive, rather than non-dispositive, such party had the right to object to the determination 3 that the rulings were non-dispositive within a specified time frame; and (4) a party would be foreclosed from challenging the rulings in the March Order if such party did not seek review 24 || thereof or object thereto. (March Order at 11 n.4). 25 *Specifically, the Magistrate Judge advised plaintiff, albeit in greater detail and with citation to authorities, that the Complaint violated Rule 8 of the Federal Rules of Civil Procedure 26 because it failed to provide defendants with fair notice of the particular claims being asserted and 27 || the grounds upon which the claims rest, failed to state an Eighth Amendment claim because it did not allege any facts which suggested that defendants had ever employed an unnecessary and 28 (continued...) 1 || plaintiff that the failure timely to file a first amended complaint, a notice of 2 || dismissal, or a notice of intent to stand on the Complaint may be deemed plaintiff's 3 || admission that amendment 1s futile and may result in the dismissal of this action on 4 || the grounds set forth in the March Order, on the ground that amendment is futile, 5 || for failure diligently to prosecute, and/or for failure to comply with the March 6 || Order. The foregoing March 27, 2020 deadline expired without any action by 7 || plaintiff. Plaintiff has not sought review of, or filed any objection to the March 8 || Order and has not communicated with the Court since it was issued. 9 As discussed below, this action is dismissed due to plaintiffs failure to state 10 | a claim for relief, his unreasonable failure to prosecute and his failure to comply 11 || with the March Order. 12] 11. PERTINENT LAW 13 It is well-established that a district court may sua sponte dismiss an action 14 || where the plaintiff has failed to comply with a court order and/or unreasonably 15 || failed to prosecute. See Link v. Wabash Railroad Co., 370 U.S. 626, 629-33 16 || (1962); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.) (as amended), cert. 17 || denied, 506 U.S. 915 (1992); see also McKeever v. Block, 932 F.2d 795, 797 (9th 18 || Cir. 1991) (district court may sua sponte dismiss action “only for an unreasonable 19 || failure to prosecute’) (citations omitted); see also Edwards v. Marin Park, Inc., 356 20 || F.3d 1058, 1065 (9th Cir. 2004) (sua sponte dismissal pursuant to Fed. R. Civ. P. 21 || 41(b) proper sanction in cases where a plaintiff is notified of deficiencies in 22 23 *(...continued) 74 || wanton infliction of pain against plaintiff or how any defendant caused him to break his left foot, failed to state a First Amendment claim predicated upon his mail being tampered with because he 25 || did not indicate how this assertedly occurred or any facts showing that defendants were responsible for such tampering, failed to state a First Amendment claim predicated on his asserted inability to access the library to copy legal papers or obtain legal information as he did 27 || not allege that such inability ever actually harmed him or impeded any attempt to bring a nonfrivolous legal claim or that any defendant ever denied him such access, and sought criminal 28 penalties which are not available in a civil action. 1 || complaint and is given “the opportunity to amend [the complaint] or be dismissed” 2 || but the plaintiff “[does] nothing’’) (citations omitted; emphasis in original). 3 In determining whether to dismiss an action for failure to prosecute or failure 4 || to comply with court orders, a district court must consider several factors, namely 5 || (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 6 || to manage its docket; (3) the risk of prejudice to defendants; (4) the public policy 7 || favoring disposition of cases on their merits; and (5) the availability of less drastic 8 || alternatives. See In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994) (failure to 9 || prosecute); Ferdik, 963 F.2d at 1260-61 (failure to comply with court orders). 10 | Dismissal is appropriate under the foregoing analysis “where at least four factors 11 || support dismissal .. . or where at least three factors ‘strongly’ support dismissal.” 12 || Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citations 13 || omitted). 14 Where a plaintiff is proceeding pro se, however, the court must first notify 15 || the plaintiff of the deficiencies in the complaint so that the plaintiff has an 16 || opportunity “to amend effectively.” Ferdik, 963 F.2d at 1261 (citation omitted). In 17 || addition, where a Magistrate Judge originally dismissed the complaint with leave to 18 || amend, the District Judge must review that decision before dismissing the entire 19 || action. See McKeever, 932 F.2d at 797 (“While the magistrate can dismiss 20 || complaints with leave to amend, the district court necessarily must review that 21 || decision before dismissing the entire action.”). A district judge may not dismiss an 22 || action for failure to comply with a court order (e.g., the Magistrate Judge’s order to 23 || file an amended complaint) or for unreasonable failure to prosecute if the initial 24 || decision to dismiss a complaint was erroneous. Yourish v. California Amplifier, 25 || 191 F.3d 983, 992 (9th Cir. 1999) (citing id.). 26 |] /// 27 | /// 28 | /// 1 III. DISCUSSION AND ORDER 2 First, the Court has reviewed the March Order and finds that it adequately 3 and properly notified plaintiff of the deficiencies in the Complaint and afforded 4 him an opportunity to amend effectively. This Court agrees with and adopts the 5 March Order, and finds that the Magistrate Judge properly dismissed the Complaint 6 with leave to amend for the reasons discussed therein. 7 Second, as explained in the March Order, the Complaint fails to state a claim 8 for relief against any defendant. The March Order explained in detail what 9 plaintiff needed to do to cure the deficiencies in his pleading, ordered plaintiff to 10 respond to the March Order by filing a first amended complaint which cured the 11 identified pleading defects, or filing a notice of dismissal, or filing a notice of 12 intent to stand on Complaint, and cautioned plaintiff that his failure timely to 13 respond to the March Order may be deemed his admission that amendment is futile 14 and may result in the dismissal of this action on the grounds identified in the March 15 Order, on the ground that amendment is futile, for failure diligently to prosecute, 16 and/or for failure to comply with the March Order. In light of plaintiff’s failure to 17 file any response to the March Order as expressly directed or to communicate with 18 the Court since its issuance, this Court deems such failure plaintiff’s admission that 19 amendment of the Complaint is futile and concludes that plaintiff is unable or 20 unwilling to draft a complaint that states viable claims for relief. See, e.g., Knapp 21 v. Hogan, 738 F.3d 1106, 1110 (9th Cir. 2013) (“When a litigant knowingly and 22 repeatedly refuses to conform his pleadings to the requirements of the Federal 23 Rules, it is reasonable to conclude that the litigant simply cannot state a claim.”) 24 (emphasis in original), cert. denied, 135 S. Ct. 57 (2014). Accordingly, dismissal 25 of the instant action based upon plaintiff’s failure to state a claim is appropriate. 26 Third, dismissal is appropriate based upon plaintiff’s failure to comply with 27 the March Order and the failure to prosecute. The Court has considered the five 28 factor discussed above – the public’s interest in expeditious resolution of litigation, 5 1 || the court’s need to manage its docket, the risk of prejudice to defendants, the public 2 || policy favoring disposition of cases on their merits, and the availability of less 3 || drastic alternatives. The first two factors — the public’s interest in expeditiously 4 || resolving this litigation and the Court’s interest in managing the docket — strongly 5 || weigh in favor of dismissal. As noted above, plaintiff has been notified of the 6 || deficiencies in the Complaint and has been given the opportunity to amend it, to 7 || dismiss it, or to notify the Court that he wishes to stand thereon. He has done 8 | nothing. See Edwards, 356 F.3d at 1065. The third factor, risk of prejudice to 9 || defendants, also weighs strongly in favor of dismissal. See Anderson v. Air West, 10 Inc., 542 F.2d 522, 524 (9th Cir. 1976) (prejudice to defendants presumed from 11 || unreasonable delay) (citation omitted). The fourth factor, the public policy 12 || favoring disposition of cases on their merits, is greatly outweighed by the factors in 13 | favor of dismissal discussed herein. As for the fifth factor, since plaintiff has 14 || already been cautioned of the consequences of his failure to prosecute and his 15 || failure to comply with the March Order, and plaintiff has been afforded the 16 || opportunity to avoid such consequences but has not responded, no sanction lesser 17 || than dismissal is feasible. See, e.g., Yourish, 191 F.3d at 989 (dismissal of action 18 || with prejudice not excessive sanction for plaintiffs’ failure timely to comply with 19 || court’s order to submit an amended complaint). 20 IT IS THEREFORE ORDERED that this action is dismissed based upon 21 || plaintiff's failure to state a claim, his unreasonable failure to prosecute and his 22 || failure to comply with the March Order. 23 IT IS SO ORDERED. 24 25 || Dated: July 8, 2020 Lh pboive Lenten, (elboanle 27 HONORABLE VALERIE BAKER FAIRBANK 38 SENIOR UNITED STATES DISTRICT JUDGE