Rapinoe v. San Diego County Sheriffs Officer ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BRIAN JAMES RAPINOE, Case No. 21cv1162-DMS (RBM) BOOKING #20944775, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILING vs. TO PROSECUTE IN COMPLIANCE 14 WITH COURT ORDER SAN DIEGO COUNTY SHERIFF’S 15 REQUIRING AMENDMENT OFFICE, et al., 16 Defendants. 17 18 19 On June 23, 2021, Plaintiff Brian James Rapino, a state prisoner proceeding pro se, 20 filed this civil rights action pursuant to 42 U.S.C. § 1983 claiming he was denied proper 21 medical care because his knee injury was not properly evaluated, his inmate grievances 22 were not properly handled, and the San Diego Sheriff’s Office implemented a no-narcotics 23 policy which prevented doctors from providing proper medical care where narcotic pain 24 medication is required. (ECF No. 1 at 2-5.) Plaintiff did not prepay the civil filing fee 25 required by 28 U.S.C. Section 1914(a) at the time of filing and instead filed a Motion to 26 Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. Section 1915(a). (ECF No. 2.) 27 On July 15, 2021, the Court granted Plaintiff’s motion to proceed in forma pauperis 28 and screened the Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)(1). 1 (ECF No. 3.) The Court dismissed the Complaint because: (1) there were no factual 2 allegations from which a plausible inference could be drawn that any named Defendant 3 was aware Plaintiff faced an excessive risk to his health or safety, and, knowing of that 4 risk, deliberately disregarded it, and (2) there is no independent constitutional right to an 5 inmate administrative appeal or grievance system. (Id. at 6-10.) The Court informed 6 Plaintiff of the deficiencies of his pleading and granted him leave to file an amended 7 complaint on or before August 30, 2021. (Id. at 6-11.) 8 Over three months have elapsed since the time to amend expired and Plaintiff has 9 not amended in compliance with this Court’s Order or otherwise contacted the Court. This 10 Court has discretion to sua sponte dismiss a case for lack of prosecution or failure to 11 comply with a court order. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); 12 see also Fed. R. Civ. P. 41(b) (providing for involuntary dismissal for failure to prosecute 13 or comply with the federal rules or court order). “The failure of the plaintiff eventually to 14 respond to the court’s ultimatum–either by amending the complaint or by indicating to the 15 court that [he] will not do so–is properly met with the sanction of a Rule 41(b) dismissal.” 16 Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004); see also Lira v. Herrera, 17 427 F.3d 1164, 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the 18 opportunity to fix his complaint, a district court may convert the dismissal of the complaint 19 into dismissal of the entire action.”) 20 “In determining whether to dismiss a claim for failure to prosecute or failure to 21 comply with a court order, the Court must weigh the following factors: (1) the public’s 22 interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; 23 (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic 24 alternatives; and (5) the public policy favoring disposition of cases on their merits.” 25 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002), citing Ferdik v. Bonzelet, 963 26 F.2d 1258, 1260-61 (9th Cir. 1992). Because the Court has informed Plaintiff of his need 27 to file an amended complaint but he has not amended or contacted the Court, factors one, 28 two and four weigh in favor of dismissal. See Yourish v. California Amplifier, 191 F.3d 1 990 (9th Cir. 1999) (“[T]he public’s interest in expeditious resolution of litigation 2 ||always favors dismissal.”); Pagtalunan, 291 F.3d at 642 (“The trial judge is in the best 3 position to determine whether the delay in a particular case interferes with docket 4 ||management and the public interest.”); Nevijel v. North Coast Life Insurance Co., 651 F.2d 5 ||671, 674 (9th Cir. 1981) (a court is not required to exhaust all alternatives prior to 6 || dismissal). Factor five does not weigh against dismissal. See In re Phenylpropanolamine 7 ||(PPA) Prod. Liab. Litig., 460 F.3d 1217, 1228 (9th Cir. 2006) (the public policy favoring 8 disposition on the merits does not weigh against dismissal where plaintiff's “conduct 9 || impedes progress in that direction.”) Only factor three does not weigh in favor of dismissal. 10 ||See Pagtalunan, 291 F.3d at 642 (where defendants have not appeared, “[w]e have 11 previously recognized that pendency of a lawsuit is not sufficiently prejudicial in and of 12 |/itself to warrant dismissal.’’) 13 Weighing these factors, the Court finds dismissal is appropriate. See Hernandez v. 14 || City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (“We may affirm a dismissal where at 15 ||least four factors support dismissal, or where at least three factors ‘strongly’ support 16 || dismissal.’’) (internal citation omitted), quoting Ferdik, 963 F.2d at 1263. 17 CONCLUSION AND ORDER 18 Accordingly, the Court DISMISSES this civil action without prejudice based on 19 || Plaintiff’s failure to prosecute by amending his Complaint as required by Court’s July 15, 20 |}2021, Order requiring amendment. The Court DIRECTS the Clerk of Court to enter a 21 || final judgment of dismissal and close the file. 22 IT IS SO ORDERED. 23 ||Dated: December 3, 2021 □ 4 a Yn. 35 Hon. Dana M. Sabraw, Chief Judge United States District Court 26 27 28