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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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11 THOMAS DAVID SIDES, Case No. CV 22-08334-DMG (GJS) 12 Plaintiff,

13 v. ORDER DISMISSING ACTION

WITHOUT PREJUDICE

14 DR. SEYED S. HOSSEINI, et al.,

15 Defendants.

16 17 On November 14, 2022, Plaintiff filed a pro se civil rights complaint and a 18 request to proceed without prepayment of the full filing fee. [Doc. # 1–2.] On 19 December 5, 2022, the Court dismissed the complaint with leave to amend due to 20 various identified defects and deferred ruling on the request. [Doc. # 4.] 21 On February 8, 2023, Plaintiff filed a First Amended Complaint. [Doc. # 9.] 22 On March 10, 2023, the Court granted Plaintiff’s request. [Doc. # 10.] Service of 23 process was ordered. Two of the Defendants thereafter filed motions to dismiss the 24 First Amended Complaint. [Doc. ## 26, 38.] Following briefing, United States 25 Magistrate Judge Gail J. Standish issued a Report and Recommendation [Doc. # 49], 26 which found that: one named Defendant (Dr. Saroj Gulani) should be dismissed 27 without prejudice for failure to serve process; another Defendant (Dr. Alan Delman) 28 should be dismissed with prejudice, because the First Amended Complaint failed to 1 2 Amended Complaint also failed to state a viable Eighth Amendment-based Bivens 3 claim for relief against the third Defendant (Dr. Seyed S. Hosseini) but that leave to 4 amend should be granted as to this Defendant. Plaintiff did not file Objections to 5 the Report. On June 6, 2024, the Court issued an Order accepting the Report and 6 dismissing the First Amended Complaint with leave to amend to allow Plaintiff to 7 attempt to plead an Eighth Amendment-based Bivens claim for relief against 8 Defendant Dr. Hosseini. [Doc. # 50, “June 6 Order.”] The June 6 Order advised 9 Plaintiff that if he wanted to have this case proceed, he must file a Second Amended 10 Complaint within 30 days that corrects the defects of the First Amended Complaint 11 identified in the Report. 12 The Second Amended Complaint was required to be filed by no later than 13 July 6, 2024. To date, a Second Amended Complaint has not been filed. It is now 14 well past Plaintiff’s deadline for complying with the June 6 Order, and he has not 15 done so, nor has he requested an extension of time to do so or otherwise 16 communicated with the Court. 17 Rule 41(b) of the Federal Rules of Civil Procedure grants federal district 18 courts the authority to sua sponte dismiss actions for failure to prosecute. Link v. 19 Wabash R. Co., 370 U.S. 626, 629-30 (1962). In determining whether dismissal for 20 lack of prosecution is proper, a court must weigh several factors, including: (1) the 21 public’s interest in expeditious resolution of litigation; (2) the court’s need to 22 manage its docket; (3) the risk of prejudice to defendants; (4) the availability of less 23 drastic sanctions; and (5) the public policy favoring the disposition of cases on their 24 merits. In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 25 (9th Cir. 2006). 26 In this case, the fifth factor, the general policy favoring resolution of cases on 27 the merits, cannot be said to favor retention of this action on the Court’s docket. As 28 explained in the Report, the First Amended Complaint was defective in its entirety. 1 2 attempt to plead a viable Eighth Amendment-based claim against one Defendant 3 only, the Magistrate Judge noted that absent substantial amendment and 4 clarification, Plaintiff’s vague, uncertain, and inconsistent allegations, read in light 5 of the First Amended Complaint’s incorporated exhibits, could not plead a plausible 6 theory for relief. The Court agrees that there is substantial doubt that the defects 7 identified in the Report could be rectified with amendment. Apparently Plaintiff 8 concurs, given his failure to attempt amendment. See In re PPA Prods. Liab. Litig., 9 460 F.3d at 1228 (“this factor lends little support to a party whose responsibility it is 10 to move a case toward disposition on the merits but whose conduct impedes 11 progress in that direction”). 12 Plaintiff’s noncompliance with the June 6 Order necessarily implicates both 13 the public interest in the expeditious resolution of litigation and the Court’s need to 14 manage its docket efficiently, the first and second factors. See In re PPA Prods. 15 Liab. Litig., 460 F.3d at 1227; see also Yourish v. California Amplifier, 191 F.3d 16 983, 990-91 (9th Cir. 1999) (“the public’s interest in expeditious resolution of 17 litigation always favors dismissal”). There is no extant operative complaint in this 18 action due to Plaintiff’s inaction, and thus, the case is stalled and unable to proceed. 19 The third factor – possible prejudice to the opposing party – is, at best, neutral 20 to Plaintiff. While there is no evidence that Plaintiff’s actions have resulted in any 21 actual prejudice to Defendants as yet, “[t]he law … presumes prejudice from 22 unreasonable delay.” In re PPA Prods. Liab. Litig., 460 F.3d at 1227. 23 In addition, the fourth factor favors dismissal. Plaintiff has been told what he 24 needs to do to allow this case to survive, but he appears to lack any further interest 25 in pursuing this case. Under these circumstances, dismissal is appropriate. 26 A balancing of these factors thus leads to the conclusion that dismissal 27 without prejudice, pursuant to Rule 41(b), is warranted. See Ferdik v. Bonzelet, 963 28 F.2d 1258, 1263 (9th Cir. 1992) (dismissal appropriate when strongly supported by 1 || three factors); Malone v. United States Postal Serv., 833 F.2d 128, 133 n.2 (9th Cir. 2 || 1987) (dismissal appropriate when supported by four factors). 3 Accordingly, for the foregoing reasons, IT IS ORDERED that this action is 4 || dismissed without prejudice, pursuant to Rule 41(b) of the Federal Rules of Civil 5 || Procedure. 6 IT IS SO ORDERED. 7 8 || DATED: November 7, 2024 Arley Jn . ? CHIEF □□ DISTRICT JUDGE 10 11 12 |) Presented by: 13

15 || GAIL J. STANDISH 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28