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Bratton v. Ontario Police Department

United States District Court, Ninth Circuit

December 17, 2013

ELVENIA BRATTON, Plaintiff,
v.
ONTARIO POLICE DEPARTMENT, Defendant.

MEMORANDUM AND ORDER DISMISSING ACTION FOR FAILURE TO PROSECUTE

DAVID O. CARTER, District Judge.

I.

PROCEEDINGS

On August 14, 2013, pro se plaintiff Elvenia Bratton filed a civil rights complaint in this Court against the Ontario Police Department ("OPD") and three OPD officers. Plaintiff alleges that she was the victim of a wrongful and illegal foreclosure and trustee sale, and that defendants wrongully evicted her from her home using falsified documents.

The Court issued its initial order in this case on August 15, 2013, in which the Court advised plaintiff that it was screening the complaint pursuant to 28 U.S.C. § 1915(e)(2). The Court also advised plaintiff that "plaintiff must immediately notify the court (and defendants or defendants' attorneys) of any change in plaintiff's address and the effective date. If plaintiff fails to keep the court informed of a correct mailing address, this case may be dismissed under Local Rule 41-6, which states as follows:

If mail directed by the Clerk to a pro se plaintiff's address of record is returned undelivered by the Postal Service, and if, within fifteen (15) days of the service date, such plaintiff fails to notify, in writing, the Court and opposing parties of his current address, the Court may dismiss the action with or without prejudice for want of prosecution."

In accordance with the terms of the Prison Litigation Reform Act of 1995 ("PLRA"), the Court screened the complaint for purposes of determining whether the action was frivolous or malicious, or failed to state a claim on which relief might be granted, or sought monetary relief against a defendant who was immune from such relief. See 28 U.S.C. § 1915(e)(2). After careful review and consideration of the allegations of the complaint under the relevant standards, the Court found that its allegations were insufficient to state a federal civil rights claim. Specifically, the Court found: (1) the complaint failed to unambiguously identify the defendants because it named four defendants in the caption of the complaint but only three in the body; (2) the complaint failed to state a claim against defendant OPD or against any defendant in his or her official capacity pursuant to Monell v. Dep't of Social Servs. of City of N.Y., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); (3) the complaint failed to state a claim against defendant Sergeant Cross because the complaint named Cross as a defendant without alleging any participation in the alleged wrongdoing by Cross; (4) the complaint impermissibly based several civil claims on criminal law violations; and (5) the complaint failed to state a claim based on due process or equal protection violations by defendants Munoz or Ramirez. Accordingly, on September 20, 2013, the Court issued an order dismissing the complaint with leave to amend. If plaintiff wished to pursue this action, she was ordered to file a First Amended Complaint by October 21, 2013 curing the deficiencies discussed in the dismissal order. The order expressly admonished plaintiff that, if she failed to timely file a First Amended Complaint, the Court may recommend that this action be dismissed.

Plaintiff failed to file a First Amended Complaint. On November 6, 2013, the court issued an Order to Show Cause Why the Complaint Should Not Be Dismissed For Failure to Prosecute ("OSC"). Plaintiff was to respond to the Order by November 27, 2013, and either show cause why the action should not be dismissed or, in the alternative, file a First Amended Complaint.

On November 20, 2013, the copy of the Court's November 6, 2013 OSC that was mailed to plaintiff at her address of record was returned to the Court as undeliverable. The Court has not received any response or other communication from plaintiff since the filing of the complaint.

II.

DISCUSSION

The original complaint filed by plaintiff herein suffers from the pleading deficiencies discussed in the Court's September 20, 2013 order dismissing the complaint with leave to amend. Additionally, when plaintiff failed to file an amended complaint, the Court issued an OSC to remind plaintiff of the complaint's deficiencies and give her an opportunity to show cause for her failure to prosecute or to discharge the OSC by filing a First Amended Complaint. But the OSC mailed to plaintiff was returned to the Court as undeliverable. Plaintiff has failed to file a First Amended Complaint remedying the original complaint's deficiencies. And plaintiff has failed to keep the Court informed of her current address, despite being directed to do so in the initial order sent to plaintiff just after she filed her complaint, so that the Court has no way to contact plaintiff. Further, plaintiff has failed to respond to the OSC by the deadline to do so, perhaps not surprisingly since the OSC was returned as undeliverable. Plaintiff's failure to file a First Amended Complaint, to keep the Court apprised of her current address, or to respond to the Court's November 6, 2013 OSC, despite being admonished of the consequences, evidences a lack of prosecution on her part.

It is well established that a district court has authority to dismiss a plaintiff's action because of his or her failure to prosecute or to comply with court orders. See Fed.R.Civ.P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962) (a court's authority to dismiss for lack of prosecution is necessary to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the district courts); Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (weighing factors); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the court).

In Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988), the Ninth Circuit affirmed the district court's dismissal of a case for failure to prosecute. The Ninth Circuit cited the following factors as relevant to the district court's determination of whether dismissal of a pro se plaintiff's action for failure to prosecute is warranted: "(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their ...


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