Contreras v. Mote ( 2020 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 KIM CONTRERAS, Case No. 1:20-cv-00366-SKO 9 Plaintiff, ORDER DISMISSING WITH PREJUDICE FOR PLAINTIFF’S 10 FAILURE TO COMPLY WITH THE v. COURT’S ORDER AND FAILURE TO 11 PROSECUTE CAROLINE MOTE, et al., 12 (Docs. 20, 22) Defendants. 13 14 I. BACKGROUND 15 On March 10, 2020, Plaintiff filed the complaint in this case against Defendants. (Doc. 1.) 16 On April 30, 2020, Defendants filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). (Doc. 17 4.) On July 13, 2020, the Court granted Defendants’ motion to dismiss, dismissed Plaintiff’s 18 complaint, and granted Plaintiff leave to file an amended complaint within 21 days of the date of 19 service of the Order. (Doc. 20.) The Court warned Plaintiff that if he did not file an amended 20 complaint in accordance with the directives in the order within the specified time, “leave to amend 21 will be withdrawn and the case will be dismissed without further notice.” (Doc. 20 at 16.) Plaintiff 22 failed to file an amended complaint by the deadline or otherwise respond to the Court’s Order. 23 Due to Plaintiff’s pro se status, the ongoing coronavirus (COVID-19) pandemic and 24 associated delays in mailing, the Court issued an order on August 13, 2020, for Plaintiff to show 25 cause (“OSC”) within twenty-one days why the action should not be dismissed for his failure to 26 comply with the Court’s screening order and for failure to state a claim. (Doc. 22.) Plaintiff was 27 warned in both the July 13, 2020 order and the OSC that the failure to comply with the Court’s order 28 1 would result in dismissal of this action. (See Doc 22 at 2. See also Doc. 20 at 16.) Plaintiff has not 2 yet filed any response and the deadline to do so has passed. 3 II. DISCUSSION 4 It is well established that a district court has authority to dismiss a plaintiff’s action because 5 of his or her failure to prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. 6 Wabash R.R. Co., 370 U.S. 626, 629–30 (1962) (holding that a court’s authority to dismiss for lack 7 of prosecution is necessary to prevent undue delays in the disposition of pending cases and to avoid 8 congestion in the calendars of the district courts); Applied Underwriters, Inc. v. Lichtenegger, 913 9 F.3d 884, 891–92 (9th Cir. 2019) (holding that dismissal with prejudice under Fed. R. Civ. P. 41(b) 10 is appropriate if the plaintiff fails to comply with a court order requiring him to file an amended 11 complaint); Yourish v. Cal. Amplifier, 191 F.3d 983, 988 (9th Cir. 1999) (holding that the plaintiff’s 12 failure to comply with a minute order setting forth the deadline to file the amended complaint gave 13 the district court the discretion to dismiss the case under Rule 41(b)); Ferdik v. Bonzelet, 963 F.2d 14 1258, 1260 (9th Cir. 1992) (holding that a district court may dismiss an action for failure to comply 15 with any order of the court). 16 In determining whether to dismiss this action due to plaintiff’s failure to prosecute or to 17 comply with court orders, the Court must consider the following five factors: “(1) the public’s 18 interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk 19 of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits[;] 20 and (5) the availability of less drastic sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 21 1988) (per curiam) (citation and quotation marks omitted); see also In re Eisen, 31 F.3d 1447, 1451 22 (9th Cir. 1994) (failure to prosecute); Ferdik, 963 F.2d at 1260-61 (failure to comply with court 23 orders). 24 The first two factors—the public’s interest in expeditious resolution of litigation and the 25 Court’s need to manage its docket—weigh in favor of dismissal. Plaintiff’s failure to file an 26 amended complaint, or respond to the OSC, hinders the Court’s ability to move this case toward 27 disposition and indicates that Plaintiff does not intend to litigate this action diligently. 28 The third factor—prejudice to Defendants—also weighs in favor of dismissal. A rebuttable 1 presumption of prejudice to the defendants arises when a plaintiff unreasonably delays prosecution 2 of an action. Eisen, 31 F.3d at 1452-53. There is nothing to suggest that such a presumption is 3 unwarranted in this case. 4 The fourth factor—public policy in favor of deciding cases on their merits—weighs against 5 dismissal. However, the Court informed Plaintiff that the allegations in the complaint were 6 insufficient to state a legally cognizable claim under 42 U.S.C. § 1983. (Doc. 20 at 7–10). The 7 Court also explained to Plaintiff that in order to proceed with his state law claims, his amended 8 complaint must allege that he complied with the notice requirements of the California Government 9 Claims Act and must plead sufficient facts. (Id. at 11–15). It is Plaintiff’s responsibility to move 10 his case toward a disposition at a reasonable pace and to avoid dilatory and evasive tactics. See 11 Morris v. Morgan Stanley Co., 942 F.2d 648, 652 (9th Cir. 1991). By entirely failing to file an 12 amended complaint as ordered by the Court (see Doc. 22), Plaintiff has not discharged this 13 responsibility. In these circumstances, the public policy favoring resolution of disputes on the merits 14 does not outweigh Plaintiff’s failure to comply with court orders. 15 The fifth factor—availability of less drastic sanctions—weighs in favor of dismissal. The 16 Court twice-attempted to avoid dismissal: first, when it issued its July 13, 2020 Order, giving 17 Plaintiff an opportunity to amend his complaint and remedy the deficiencies therein; and second, 18 when it issued the OSC directing Plaintiff to show cause why the case should not be dismissed. As 19 of the date of this Order, Plaintiff has neither filed an amended complaint as required by the Court’s 20 July 13, 2020 Order, nor responded to the OSC. 21 Taking all of the above factors into account, dismissal for failure to prosecute and to follow 22 court orders is appropriate in this case. Such a dismissal, however, should not be entered unless the 23 plaintiff has been notified that dismissal is imminent. See W. Coast Theater Corp. v. City of 24 Portland, 897 F.2d 1519, 1523 (9th Cir. 1990). Here, Plaintiff was twice cautioned about the 25 possibility of dismissal—in the Court’s July 13, 2020 Order and in the OSC. (See Docs. 20, 22.) 26 III. ORDER 27 Based on the foregoing, this case is DISMISSED with prejudice for failure to prosecute and 28 for failure to obey the Court’s orders. The Clerk of Court is directed to enter judgment and to close 1 this case. 2 IT IS SO ORDERED. 3 Sheila K. Oberto 4 Dated: September 16, 2020 /s/ . UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28