United States District Court, E.D. California
RODNEY B. BARNO, Plaintiff,
v.
DAVID LOPEZ, et al.,
ORDER DISMISSING COMPLAINT
RALPH
R. BEISTLINE UNITED STATES DISTRICT JUDGE
Rodney
B. Barno, a California state prisoner appearing pro
se and in forma pauperis, filed this action
under the Civil Rights Act, 42 U.S.C. § 1981, and the
Declaratory Relief Act, 28 U.S.C. §§ 2201, 2202,
against various officials employed by the California
Department of Corrections and Rehabilitation.[1] Barno’s
action arises out of his incarceration at the California
Substance Abuse Treatment Facility-Corcoran
(“CSATF”). Barno is currently incarcerated at the
California State Prison, Soledad.
I.
BACKGROUND/PRIOR ORDERS
In
screening Barno’s Complaint the Court found that the
Complaint stated an excessive force cause of action against
Lopez for excessive force and Johnson for labeling Barno as a
snitch. The Court dismissed all other claims. The Court
granted Barno the option of proceeding on his Complaint as
against Lopez and Johnson or filing an Amended Complaint. The
Court also gave Barno specific instructions to follow in the
event that he elected to file an Amended
Complaint.[2]
In
response to the Court’s Order Barno elected to file an
Amended Complaint against Lopez, Avilla-Beccera, Johnson and
Frazier.[3] In screening the Amended Complaint, the
Court found that, in addition to failing to cure most of the
defects noted in dismissing the Complaint, Barno failed to
attach to his Amended Complaint the documents evidencing his
attempts to exhaust his administrative remedies. The Court
dismissed the First Amended Complaint in its entirety for
failing to comply with the Court’s directions with
leave to amend consistent with the Court’s
orders.[4]
In
response to the Court’s second dismissal order Barno
filed a document entitled “Motion for Relief from
Court’s Dismissal Order; Notice of Intent Not to Amend
First Amended Complaint.”[5] In that document Barno
essentially argues that, in requiring that he provide more
specific factual allegations and that he plead facts showing
he has exhausted his administrative remedies, the Court
misconstrued and misapplied the requirements of Rule 8. In
addition to disagreeing with the Court, Barno has clearly and
unequivocally indicated that has no intent to further amend
his complaint.[6]
II.
DISCUSSION
This
Court may dismiss for failure to comply with a court order or
rule sua sponte.[7]In so doing, this Court must weigh five
factors: (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
defendants/respondents; (4) the availability of less drastic
alternatives; and (5) the public policy favoring disposition
of cases on their merits.[8]
In this
case, weighing those factors to the extent that they may be
applicable, this Court concludes that dismissal without
prejudice presents a proper balance. In particular, the Court
notes that Barno has clearly and unequivocally indicated that
he has no intent to comply with the Court’s Order to
further amend his Complaint.[9]
III.
ORDER
Accordingly
the First Amended Complaint on file herein is hereby
DISMISSED in its entirety without prejudice.
This
Court, having fully considered the matter finds that
reasonable jurists could not disagree with this Court’s
resolution of his claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to
proceed further other than by an appropriate amendment
consistent with the Court's Order. Any appeal would be
frivolous or taken in bad faith.[10] Therefore, Barno's
in forma pauperis status is hereby
REVOKED.
The
Clerk of the Court to enter final judgment accordingly.
IT
...