Robert Damon Epps v. LAC ( 2021 )

1 2 3 O 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROBERT DAMON EPPS, Case No. 2:21-cv-02593-ODW-KES 12 Plaintiff, 13 v. ORDER DIS MISSING ACTION WITHOUT PREJUDICE FOR 14 LAC, FAILURE TO PROSECUTE 15 Defendant. 16 17 18 I. 19 BACKGROUND 20 In March 2021, Robert Damon Epps (“Plaintiff”), an inmate in state custody 21 who is proceeding pro se, filed a civil rights complaint under 42 U.S.C. § 1983. 22 (“Complaint” at Dkt. 1.) He requested assignment to a single cell based on his fear 23 of physical assault by other inmates. (Id. at 5.) 24 The Court reviewed the Complaint under the Prison Litigation Reform Act, 25 28 U.S.C. § 1915A(a), and found that it failed to state a claim against LAC 26 (California State Prison-Los Angeles County), the prison where Plaintiff is 27 currently housed and the only Defendant named in the Complaint. (Dkt. 6); see 28 1 also CDCR Inmate Locator, https://inmatelocator.cdcr.ca.gov/. The Court 2 dismissed the Complaint with leave to amend, directing Plaintiff to respond to the 3 dismissal order on or before May 4, 2021. (Dkt. 6 at 3-4.) After Plaintiff failed to 4 respond, the Court ordered Plaintiff to show cause on or before June 28, 2021 why 5 this action should not be dismissed for lack of prosecution and/or failure to follow 6 the Court’s orders. (Dkt. 7.) As of the date of this Order, the Court has not 7 received any further filings from Plaintiff. 8 II. 9 DISCUSSION 10 A. Legal Standard 11 A district court may dismiss an action for failure to prosecute, failure to 12 follow court orders, or failure to comply with the federal or local rules. See Fed. 13 R. Civ. P. 41(b); Link v. Wabash R. Co., 370 U.S. 626, 629-30 (1962); Ghazali v. 14 Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). 15 Central District of California Local Rule 41-1 provides, “Civil suits which 16 have been pending for an unreasonable period of time without any action having 17 been taken therein may, after notice, be dismissed for want of prosecution.”1 Local 18 Rule 41-6 provides: 19 A party proceeding pro se shall keep the Court and opposing parties 20 apprised of such party’s current address and telephone number, if any, 21 and e-mail address, if any. If mail directed by the Clerk to a pro se 22 plaintiff’s address of record is returned undelivered by the Postal 23 Service, and if, within fifteen (15) days of the service date, such 24 plaintiff fails to notify, in writing, the Court and opposing parties of 25 said plaintiff’s current address, the Court may dismiss the action with 26 27 1 The Local Rules of the U.S. District Court for the Central District of California are available online at: https://www.cacd.uscourts.gov/court-procedures/local-rules. 28 1 or without prejudice for want of prosecution. 2 L.R. 41-6. 3 In determining whether to dismiss a case for failure to prosecute or failure to 4 comply with court orders, the Ninth Circuit has instructed district courts to consider 5 the following five factors: (1) the public’s interest in expeditious resolution of 6 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 7 defendants; (4) the availability of less drastic sanctions; and (5) the public policy 8 favoring disposition of cases on their merits. In re Phenylpropanolamine (PPA) 9 Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006). The test is not 10 “mechanical,” but provides a “non-exhaustive list of things” to “think about.” 11 Valley Eng’rs v. Elec. Eng’g Co., 158 F.3d 1051, 1057 (9th Cir. 1998). 12 B. Analysis 13 Here, the first two factors favor dismissal. The first factor—the public’s 14 interest in the expeditious resolution of litigation—“always favors dismissal.” 15 Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). 16 The second factor—the Court’s need to manage its docket—favors dismissal 17 here because Plaintiff’s “noncompliance has caused [this] action to come to a 18 complete halt, thereby allowing [him] to control the pace of the docket rather than 19 the Court.” Id. (internal quotations marks omitted). 20 The third factor—prejudice to Defendant—weighs in favor of dismissal, 21 although perhaps not as strongly as some of the other factors. Because this Court 22 dismissed the complaint on screening, Defendant has not been served. See 23 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (“[T]he government has 24 not been ordered to respond to Pagtalunan’s habeas petition. We have previously 25 recognized that pendency of a lawsuit is not sufficiently prejudicial in and of itself 26 to warrant dismissal.”); Hunter v. Sandoval, No. 17-cv-09257-CJC-SHK, 2018 27 U.S. Dist. LEXIS 210543 at *5, 2018 WL 6570870 at *2 (C.D. Cal. Dec. 12, 2018) 28 (finding no prejudice to a defendant who had not yet been served). On the other 1 hand, a rebuttable presumption of prejudice to the defendants arises when a 2 plaintiff unreasonably delays prosecution of an action, In re Eisen, 31 F.3d 1447, 3 1452-53 (9th Cir. 1994), and unnecessary delay “inherently increases the risk that 4 witnesses’ memories will fade and evidence will become stale.” Pagtalunan, 291 5 F.3d at 643. 6 The fourth factor—availability of less drastic sanctions—favors dismissal. 7 The Court’s prior orders warned Plaintiff that failure to respond might result in a 8 dismissal of this action. (Dkt. 6 at 4; Dkt. 7 at 2.) See Ferdik v. Bonzelet, 963 9 F.2d 1258, 1262 (9th Cir. 1992) (“a district court’s warning to a party that his 10 failure to obey the court’s order will result in dismissal can satisfy the 11 ‘consideration of alternatives’ requirement”) (citation omitted). 12 The fifth factor—public policy favoring a disposition of an action on its 13 merits—arguably weighs against dismissal here. Pagtalunan v. Galaza, 291 F.3d 14 639, 643 (9th Cir. 2002). However, the effect of this factor is somewhat mitigated 15 by the fact that Plaintiff’s Complaint failed to state a claim for relief for the reasons 16 explained in the Court’s April 6, 2021 dismissal order. (Dkt. 6.) 17 Given that the enumerated factors largely support dismissal, this action will 18 be dismissed pursuant to Rule 41(b) and Local Rule 41-1. The Court has discretion 19 to dismiss an action under Rule 41(b) with or without prejudice. See Fed. R. Civ. 20 P. 41(b) (“[u]nless the dismissal order states otherwise,” a dismissal pursuant to 21 Federal Rule of Civil Procedure 41(b) operates as an adjudication on the merits 22 absent exceptions that are not relevant here); Local Rule 41-2 (“[u]nless the Court 23 provides otherwise, any dismissal pursuant to [Local Rule] 41-1 shall be without 24 prejudice”); Al-Torki v. Kaempen, 78 F.3d 1381, 1385 (9th Cir. 1996). 25 Considering all of the circumstances, the action will be dismissed in its entirety 26 without prejudice. 27 28 1 III. 2 CONCLUSION 3 IT IS THEREFORE ORDERED that Judgment will be entered dismissing 4 | this action without prejudice for failure to prosecute. 5 Ne 6 | DATED: July 13, 2021 Ge Ndod 7 OTIS D. WRIGHTAI UNITED STATES DISTRICT JUDGE 9 | Presented by: | Tous E. Sotto 11 | KAREN E. SCOTT 12 | UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28