United States District Court, C.D. California
MEMORANDUM AND ORDER DISMISSING ACTION FOR FAILURE TO
HONORABLE PERCY ANDERSON UNITED STATES DISTRICT JUDGE.
April 27, 2015, plaintiff William Harris, a state prisoner
proceeding pro se and in forma pauperis, lodged a civil
rights complaint pursuant to Title II of the Americans with
Disabilities Act and Section 504 of the Rehabilitation Act.
In the complaint, plaintiff alleged he was denied basic
programs, services, and activities due to his psychiatric
disability while he was housed at the California State
Prison, Los Angeles County. After the dismissal of
duplicative defendants, the complaint was ultimately served
on the remaining defendant.
filed a motion to dismiss on September 8, 2015. After the
Court granted plaintiff an extension of time to file an
opposition to the motion to dismiss, plaintiff failed to
respond in the time permitted. On November 2, 2016, the Court
issued an Order granting defendant's motion, dismissing
plaintiff's claims for injunctive and declaratory relief
with prejudice, dismissing plaintiff's claims for
monetary relief with leave to amend, and granting plaintiff
until December 2, 2016 to file a First Amended Complaint to
cure the deficiencies of his claims for monetary relief, as
discussed in the Court's August 4, 2016 Report and
failed to file a First Amended Complaint by the December 2,
2016 deadline, or at all. On December 22, 2016, the Court
issued an Order to Show Cause Why the Complaint Should Not Be
Dismissed For Failure to Prosecute (“OSC”).
Plaintiff was ordered to respond to the OSC by January 12,
2017, and show cause why the action should not be dismissed.
The Court cautioned plaintiff that his failure to timely
respond to the OSC will be deemed by the Court as consent to
the dismissal of this action. Plaintiff did not respond to
the OSC by the deadline. The Court has not received any
response to the OSC, and has not received any communication
from plaintiff since September 6, 2016, when he requested an
extension of time to file objections to the Court's
August 4, 2016 Report and Recommendation.
complaint filed by plaintiff herein suffered from the
pleading deficiencies discussed in the Court's August 4,
2016 Report and Recommendation, and has been dismissed. When
plaintiff failed to file a First Amended Complaint, the Court
issued an OSC giving him an opportunity to show cause for his
failure to prosecute or to discharge the OSC by filing a
First Amended Complaint, and warning plaintiff that failure
to comply with the Court's order would be deemed by the
Court as consent to the dismissal of this action. Plaintiff
has failed to file a First Amended Complaint remedying the
original complaint's deficiencies, and has failed to
respond to the OSC by the deadline to do so. Plaintiff's
failure to file a First Amended Complaint, or to otherwise
respond to the Court's December 22, 2016 OSC, despite
being admonished of the consequences, evidences a lack of
prosecution on his part.
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).
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
merits and (5) the availability of less drastic
sanctions.'” Id. at 1440 (quoting
Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.
case, plaintiff has failed to file a First Amended Complaint
as directed and failed to respond to the Court's December
22, 2016 OSC. Plaintiff's failure to follow the
Court's orders and to prosecute his case has caused this
action to languish, impermissibly allowing plaintiff to
control the pace of the docket rather than the Court. See
Pagtalunan, 291 F.3d at 642 (“It is incumbent upon
the Court to manage its docket without being subject to
routine noncompliance of litigants.”). Plaintiff's
conduct indicates that he does not intend to litigate this
action diligently, or at all. Thus, the first and second
factors weigh in favor of dismissal. See Yourish v.
California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)
(“[T]he public's interest in expeditious resolution
of litigation always favors dismissal.”).
rebuttable presumption of prejudice to defendants arises when
a plaintiff unreasonably delays prosecution of an action.
See In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir.
1994). Nothing suggests that the presumption of prejudice to
defendant is unwarranted here. Where a party offers a poor
excuse for failing to comply with a court's order, the
prejudice to the opposing parties is sufficient to favor
dismissal. See Yourish, 191 F.3d at 991-92. Here,
plaintiff has not offered any excuse for his failure to
comply with the Court's orders. Further,
“[u]nnecessary delay inherently increases the risk that
witnesses' memories will fade and evidence will become
stale.” Pagtalunan, 291 F.3d at 643 (citing
Sibron v. New York, 392 U.S. 40, 57, 88 S.Ct. 1889,
20 L.Ed.2d 917 (1968)). Thus, the third factor also weighs in
favor of dismissal.
It is a
plaintiff's responsibility to move a case toward a
disposition at a reasonable pace and to avoid dilatory and
evasive tactics. See Morris v. Morgan Stanley &
Co., 942 F.2d 648, 652 (9th Cir. 1991). By failing to
file a First Amended Complaint, or to respond to the
Court's December 22, 2016 OSC, plaintiff has not
discharged this responsibility. In these circumstances, the
public policy favoring resolution of disputes on the merits
does not outweigh plaintiff's failure to comply with
court orders or move the case forward.
fifth factor, the availability of less drastic sanctions,
ordinarily counsels against dismissal. “Alternative
sanctions include: a warning, a formal reprimand, placing the
case at the bottom of the calendar, a fine, the imposition of
costs or attorney fees, the temporary suspension of the
culpable counsel from practice before the court, . . .
dismissal of the suit unless new counsel is secured [, ] . .
. preclusion of claims or defenses, or the imposition of fees
and costs upon plaintiff's counsel. . .” Malone
v. U.S. Postal Serv., 833 F.2d 128, 132 n.1 (9th Cir.
1987) (citation and internal quotation omitted). In the