United States District Court, C.D. California
CASSIE L. CARMICHAEL, Plaintiff,
HOUSING AUTHORITY OF SAN LUIS OBISPO, et al., Defendants.
MEMORANDUM AND ORDER DISMISSING ACTION FOR FAILURE TO
17, 2018, pro se plaintiff Cassie L. Carmichael, proceeding
in forma pauperis, filed a civil rights Complaint under 42
U.S.C. Â§ 1983. In the Complaint, plaintiff generally alleges
various individuals violated her right to fair housing.
Plaintiff names the following defendants in their individual
and official capacities: Housing Authority of San Luis Obispo
(âHASLOâ) and the Paso Robles Housing Authority (âPRHAâ).
Court issued its initial order in this case on August 1,
2018, in which the Court advised plaintiff that it was
screening the Complaint pursuant to 28 U.S.C. §
1915(e)(2). 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).
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 fails to comply with Federal Rule of Civil
Procedure 8; (2) the Complaint fails to state a claim against
defendants HASLO and PRHA because it does not state a claim
in accordance with Monell v. Dep't of Social Servs.
of City of N.Y., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d
611 (1978); (3) the Doe defendants are insufficiently
identified; (4) the Complaint fails to state a 42 U.S.C.
§ 1981a claim because plaintiff's claims are
unrelated to employment discrimination and the only named
defendants are government agencies; (5) the Complaint fails
to state a Fair Housing Act claim because there are no facts
alleged that satisfy the elements of such a claim; (6) the
Complaint does not state a claim based on a privacy right
that is secured by the Constitution or the laws of the United
States; and (7) the Court would decline to exercise
supplemental jurisdiction over plaintiff's state law
claims because all of her federal claims are subject to
dismissal. Accordingly, on October 10, 2018, the Court issued
an Order dismissing the Complaint but granting leave to file
a First Amended Complaint (“FAC”). Plaintiff was
ordered to file a First Amended Complaint by November 9, 2018
if she wished to cure the deficiencies in her Complaint
identified by the Court. The Court warned plaintiff that
failure to timely comply with the order may result in
dismissal of the action.
did not file a First Amended Complaint on or after November
9, 2018. On December 7, 2018, the Court issued an Order to
Show Cause (“OSC”) why this action should not be
dismissed for failure to prosecute. Plaintiff was ordered to
respond to the OSC by December 28, 2018, and show cause in
writing why the action should not be dismissed for failure to
prosecute and/or comply with a court order. The Court advised
plaintiff the OSC would be discharged if she filed a First
Amended Complaint by December 28, 2018. The Court cautioned
plaintiff that her failure to timely respond to the OSC would
be deemed by the Court as consent to the dismissal of this
action without prejudice.
did not respond in any fashion to the OSC by the December 28,
2018 deadline as ordered. In fact, the Court has not received
any communication from plaintiff since she filed a Notice of
Change of Address and request for the Marshal's Service
to serve defendant with the Complaint on September 10, 2018.
original Complaint filed by plaintiff herein suffers from the
pleading deficiencies discussed in the Court's October
10, 2018 Order Dismissing Complaint With Leave to Amend. The
Court set a deadline for filing an amended complaint of
November 9, 2018. When four weeks passed beyond the deadline
without the Court receiving a First Amended Complaint or any
other communication from plaintiff, the Court issued an OSC.
The OSC gave her an opportunity to show in writing why the
action should not be dismissed for failure to prosecute or
comply with a court order, and effectively extended her time
to file a First Amended Complaint. Plaintiff failed to
respond to the OSC by the December 28, 2018 deadline, or at
all. Plaintiff's failure to file a First Amended
Complaint or to respond in any fashion to the Court's
December 7, 2018 OSC, despite being admonished of the
consequences, evidences a lack of prosecution on her 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 failed to file a First Amended Complaint or
voluntary dismissal as directed, and failed to respond to the
Court's December 7, 2018 OSC. Plaintiff's failure to
follow the Court's orders and to prosecute her 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 she 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). Although the defendants here have not yet been served
and the pendency of a lawsuit is not itself sufficiently
prejudicial to warrant dismissal (Pagtalunan, 291
F.3d at 642), nothing suggests that the presumption of
prejudice to defendants 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 her failure to
comply with the Court's orders. Further,
“[u]nnecessary delay inherently increases the risk that
witnesses' memories ...