1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CARLTON MARIO SIMS, Case No. 2:23-cv-00768-VBF-PD 12 Plaintiff, ORDER DISMISSING ACTION 13 v. FOR FAILURE TO

PROSECUTE

14

CALIFORNIA DEPARTMENT OF

15 CORRECTION AND REHABILITATION, et al., 16 Defendant. 17 18 19 I. Pertinent Procedural History and Plaintiff’s Claims 20 On August 3, 2023, Plaintiff Carlton Mario Sims (“Plaintiff”), who is 21 proceeding pro se, filed a First Amended Complaint under 42 U.S.C. § 1983 22 against Defendant California Department of Corrections and Rehabilitation 23 Health Care Department Chief S. Gates (“Gates”). [Dkt. No. 8 at 3.] Plaintiff 24 alleges that he received inadequate medical treatment after contracting 25 COVID-19. [Id. at 4-5.] He seeks $20,000 in damages for the pain and 26 suffering he has endured. [Id. at 5.] On January 9, 2024, the Court issued a screening order dismissing the 27 First Amended Complaint for failure to comply with Federal Rule of Civil 28 1 Procedure 8 and directed Plaintiff to file a Second Amended Complaint curing 2 the defects identified by the Court no later than February 6, 2024. [Dkt. No. 3 9.] The Court’s Order was mailed to the address listed on the First Amended 4 Complaint, which was the California State Prison – Los Angeles County, in 5 Lancaster, California. [Id.] 6 On February 12, 2024, the Court’s order was returned from California 7 State Prison-Los Angeles County with a notation “RETURN TO SENDER-- 8 inmate out to court.” [Dkt. No. 10.] 9 On February 16, 2024, the Court issued an Order to Show Cause 10 (“OSC”) re: Plaintiff’s current address and failure to file a Second Amended 11 Complaint. [Dkt. No. 11.] According to the California Incarcerated Records & 12 Information Search (“CIRIS”), Plaintiff was in the custody of the CDCR at 13 Salinas Valley State Prison, 31625 Highway 101, Soledad, CA, 93960. See 14 https://cdcr.ca.gov/search. The Court ordered Plaintiff to provide a current address and a Second Amended Complaint curing the deficiencies outlined in 15 Docket Number 9 to the Court no later than March 13, 2024. [Id.] Plaintiff 16 was cautioned that if he failed to respond to the OSC, the Court would 17 recommend dismissal of this action for failure to prosecute. [See id.] The 18 OSC was mailed to the address listed on the docket and to Salinas Valley 19 State Prison. [Id.] 20 On March 12, 2024, the Court’s OSC was returned from California State 21 Prison-Los Angeles County and Salinas Valley State Prison with notations 22 “RETURN TO SENDER--inmate out to court.” [Dkt. Nos. 12-17.] 23 To date, Plaintiff has not responded to the Court’s orders, provided an 24 updated address, or otherwise communicated with the Court about his case 25 since August 2023. Accordingly, the case is now subject to dismissal for 26 Plaintiff’s failure to prosecute pursuant to Rule 41(b) of the Federal Rules of 27 Civil Procedure and Local Rule 41-6. 28 1 II. Discussion 2 Rule 41(b) grants district courts the authority to sua sponte dismiss 3 actions for failure to prosecute. Link v. Wabash R.R. Co., 370 U.S. 626, 629- 4 30 (1962). In determining whether dismissal for lack of prosecution is 5 warranted, a court must weigh several factors, including: (1) the public’s 6 interest in expeditious resolution of litigation; (2) the court’s need to manage 7 its docket; (3) the risk of prejudice to defendants; (4) the availability of less 8 drastic sanctions; and (5) the public policy favoring the disposition of cases on 9 their merits. Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002); Ferdik 10 v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992). Dismissal is appropriate 11 under the foregoing analysis “where at least four factors support dismissal ... 12 or where at least three factors ‘strongly’ support dismissal.” Hernandez v. 13 City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citations omitted). 14 In this case, the first two factors – public interest in expeditious resolution of litigation and the need to manage the Court’s docket – weigh in 15 favor of dismissal. Plaintiff did not file a Second Amended Complaint or 16 provide an updated address. His failure to file an amended complaint or 17 update his address—or show good cause for his delay—prevents the Court 18 from moving this case toward disposition and shows that Plaintiff does not 19 intend to litigate this action diligently. 20 Arguably, the third factor – prejudice to Defendant – does not counsel in 21 favor of dismissal because no viable pleading exists, and thus Defendant is 22 unaware that a case has been filed. However, the Ninth Circuit has held that 23 prejudice may be presumed from unreasonable delay. See In re Eisen, 31 F.3d 24 1447, 1452-53 (9th Cir. 1994); Moore v. Teflon Commc’ns. Corp., 589 F.2d 959, 25 967-68 (9th Cir. 1978). Plaintiff’s inaction in this matter is an unreasonable 26 delay, given that the Court has attempted to mail several orders to Plaintiff 27 and has received no communication. In the absence of any explanation, non- 28 1 frivolous or otherwise, for Plaintiff’s delay, the Court presumes prejudice. See 2 Laurino v. Syringa Gen. Hosp., 279 F.3d 750, 753 (9th Cir. 2002) 3 (presumption of prejudice can be rebutted by a non-frivolous explanation); 4 Pagtalunan, 291 F.3d at 642 (citing Yourish v. California Amplifier, 191 F.3d 5 983, 991 (9th Cir. 1999)). 6 The fourth factor – the availability of less drastic sanctions – ordinarily 7 counsels against dismissal. However, the Court attempted to avoid outright 8 dismissal by giving Plaintiff ample time to communicate with the Court, 9 update his address, and file an amended complaint. Plaintiff was also 10 expressly warned that failure to comply with the Court’s orders could result in 11 dismissal. [See Dkt. Nos. 9, 11.] Thus, the Court explored the only 12 meaningful alternatives to dismissal in its arsenal and found that they were 13 not effective. See Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) 14 (“The district court need not exhaust every sanction short of dismissal before finally dismissing a case, but must explore possible and meaningful 15 alternatives.”) (citation omitted). 16 The fifth factor – the general policy favoring resolution on the merits – 17 ordinarily weighs against dismissal. Pagtalunan, 291 F.3d at 643. It is, 18 however, the responsibility of the moving party to move the case toward 19 disposition on the merits at a reasonable pace and to refrain from dilatory and 20 evasive tactics. Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 21 1991). Because Plaintiff has failed to participate in his own lawsuit, it does 22 not appear that retention of this case would increase the likelihood of the 23 matter being resolved on its merits. This factor does not weigh in favor of or 24 against dismissal. 25 26 27 28 1 In sum, four out of the five factors support dismissal. The Court 2 concludes that dismissal for failure to prosecute is warranted. 3 For the foregoing reasons, this action is dismissed for failure to 4 prosecute. 5 IT IS SO ORDERED. 6 21 Dated: August _____, 2024 7 /s/ Valerie Baker Fairbank 8 ____________________________________

HONORABLE VALERIE B. FAIRBANK

9

UNITED STATES DISTRICT JUDGE

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