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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 JURON D. ERVIN, Case No. 5:24-cv-01024-DDP-KES

12 Plaintiff,

ORDER DISMISSING ACTION

13 v.

WITHOUT PREJUDICE FOR LACK

14 M. LEON, et al., OF PROSECUTION

15 Defendants.

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18 I.

19 BACKGROUND

20 Plaintiff Juron D. Ervin (“Plaintiff”) filed his original pro se civil rights 21 complaint under 42 U.S.C. § 1983 against five defendants in May 2024. (Dkt. 1.) 22 All of the defendants named in the Complaint were employees of either the 23 California Rehabilitation Center (“CRC”) in Norco or the California Institution for 24 Men (“CIM”) in Chino. (Id.) He brought claims under the Eighth and Fourteenth 25 Amendments. (Id.) In the Complaint, Plaintiff alleged that he was seriously 26 injured on January 30, 2024, when a group of Hispanic inmates attacked him at 27 CRC. (Dkt. 1 at 5-6.) He alleged that CRC Correctional Officer (“CO”) C. Leon 28 1 (“Defendant Leon”) was responsible for the attack because he “told some of 2 [Plaintiff’s] Hispanic dorm-makes that [Plaintiff] needed to be taught a lesson or 3 else [Defendant Leon] would have the entire dorm ramshacked and take more 4 property.” (Id. at 6.) Plaintiff alleged that CRC CO O. Zamora-Rios (“Defendant 5 Zamora”) failed to protect him after he alerted the CO of the potential attack set in 6 motion by Defendant Leon. (Id.) 7 The previously assigned magistrate judge, Judge Wilner, dismissed the 8 Complaint with leave to amend. (Dkt. 7 at 1.) Judge Wilner determined that the 9 factual allegations against Defendant Leon were vague and based on “a 10 convoluted, hearsay-based attribution,” and that the factual allegations against 11 Defendant Zamora “could not plausibly rise to the level of a constitutional 12 violation” due to insufficient facts. (Id. at 1–2.) 13 In June 2024, Plaintiff filed the First Amended Complaint (“FAC”). (Dkt. 14 9.) Plaintiff named only Defendant Leon and Defendant Zamora as defendants and 15 sued them in both their individual and official capacities. (Id. at 3.) Judge Wilner 16 dismissed the FAC with leave to amend because “the allegations against Officers 17 Leon and Zamora remain[ed] essentially unchanged.” (Dkt. 10 at 2.) Most of the 18 language used in the FAC was taken “word-for-word from the original – and 19 factually inadequate – complaint.” (Id.) Plaintiff merely added “conclusory 20 language” to support his claims. (Id.) 21 In July 2024, Plaintiff filed the Second Amended Complaint (“SAC”). (Dkt. 22 13.) The SAC sued both Defendants Leon and Zamora in their individual, but not 23 their official, capacity. (Id. at 3.) The SAC included a paragraph in which Plaintiff 24 asserts that he can provide affidavits from other inmates but is unwilling to name 25 them in his pleadings. (Id. at 7-8.) 26 On September 17, 2024, this Court issued an order dismissing the SAC with 27 leave to amend to allow Plaintiff to “add more facts about the reliability of the 28 hearsay information he received about Defendant Leon” and more facts about 1 “what he told Defendant Zamora and what, if anything, he asked or expected 2 Defendant Zamora to do to protect him,” given the short window of time between 3 their conversation and the attack. (Dkt. 15 at 10.) Plaintiff’s Third Amended 4 Complaint (“TAC”) was due by October 16, 2024. (Id.) 5 On October 4, 2024, this Court’s September 17 dismissal order, which was 6 mailed to Plaintiff at CIM, was returned as undeliverable. (Dkt. 17.) Plaintiff had 7 not filed a notice of change of address. Accordingly, on November 19, 2024, the 8 Court dismissed the action without prejudice for lack of prosecution. (Dkt. 19.) 9 On December 5, 2024, Plaintiff constructively filed a letter challenging the 10 order dismissing his case. (Dkt. 21) He contended that he was “dealing with 11 extreme retaliation before and after filing” the Complaint. (Id. at 1.) He 12 complained that he was not receiving mail in a timely manner while in prison, even 13 though his address had not changed. (Id.) He requested that the Court reinstate his 14 case. (Id. at 2.) 15 The Court construed this letter as a motion for reconsideration. (Dkt. 23.) 16 On December 16, 2024, the Court granted this motion and reinstated the case. (Id.) 17 The Court ordered Plaintiff to file a TAC on or before March 1, 2025, thereby 18 giving Plaintiff more than two additional months to file a TAC. (Id.) The order 19 informed Plaintiff that “[f]ailure to file an amended complaint may result in 20 dismissal of the action.” (Id.) 21 The Court did not receive a TAC from Plaintiff by March 1, 2025. 22 Nevertheless, the Court extended the deadline to file a TAC again to March 31, 23 2025. (Dkt. 25.) As of the date of this order, the Court has not received a TAC or 24 any other motions from Plaintiff. 25 II. 26 LEGAL STANDARD 27 A district court may dismiss an action for failure to prosecute, failure to 28 follow court orders, or failure to comply with the federal or local rules. See Fed. 1 R. Civ. P. 41(b); Link v. Wabash R. Co., 370 U.S. 626, 629-30 (1962); Ghazali v. 2 Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). Central District of California 3 Local Rule 41-1 provides, “Civil suits which have been pending for an 4 unreasonable period of time without any action having been taken therein may, 5 after notice, be dismissed for want of prosecution.”1 6 The Court has discretion to dismiss the action with or without prejudice. 7 See Fed. R. Civ. P. 41(b) (“[u]nless the dismissal order states otherwise,” or certain 8 exceptions apply, a dismissal pursuant to Federal Rule of Civil Procedure 41(b) 9 “operates as an adjudication on the merits”); Local Rule 41-2 (“[u]nless the Court 10 provides otherwise, any dismissal pursuant to [Local Rule] 41-1 shall be without 11 prejudice”); Al-Torki v. Kaempen, 78 F.3d 1381, 1385 (9th Cir. 1996) (“Dismissal 12 with prejudice and default on counterclaims, for willful and inexcusable failure to 13 prosecute, are proper exercises of discretion under Federal Rules of Civil 14 Procedure 41(b), 16(f), and the inherent power of the court.”). 15 In determining whether to dismiss a case for failure to prosecute or failure to 16 comply with court orders, the Ninth Circuit has instructed district courts to 17 consider the following five factors: (1) the public’s interest in expeditious 18 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 19 prejudice to the defendants; (4) the availability of less drastic sanctions; and (5) the 20 public policy favoring disposition of cases on their merits. In re 21 Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 22 2006). The test provides a “non-exhaustive list of things” to “think about.” Valley 23 Eng’rs v. Elec. Eng’g Co., 158 F.3d 1051, 1057 (9th Cir. 1998). 24 25

26 1 The Local Rules of the U.S. District Court for the Central District of 27 California are available online at: https://www.cacd.uscourts.gov/court- procedures/local-rules. 28 1 III. 2 DISCUSSION 3 Here, the first two factors favor dismissal. The first factor—the public’s 4 interest in the expeditious resolution of litigation—“always favors dismissal.” 5 Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). The second factor— 6 the Court’s need to manage its docket—favors dismissal here because Plaintiff’s 7 “noncompliance has caused [this] action to come to a complete halt, thereby 8 allowing [him] to control the pace of the docket rather than the Court.” Id. 9 (internal quotations marks omitted). 10 The third factor—prejudice to Defendants—weighs in favor of dismissal, 11 although perhaps not as strongly as some of the other factors. Because this Court 12 dismissed the SAC on screening, Defendants have not been served. See 13 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (“We have previously 14 recognized that pendency of a lawsuit is not sufficiently prejudicial in and of itself 15 to warrant dismissal.”); Hunter v. Sandoval, No. 17-cv-09257-CJC-SHK, 2018 16 U.S. Dist. LEXIS 210543 at *5, 2018 WL 6570870 at *2 (C.D. Cal. Dec. 12, 2018) 17 (finding no prejudice to a defendant who had not yet been served). On the other 18 hand, a rebuttable presumption of prejudice to the defendants arises when a 19 plaintiff unreasonably delays prosecution of an action, In re Eisen, 31 F.3d 1447, 20 1452-53 (9th Cir. 1994), and unnecessary delay “inherently increases the risk that 21 witnesses’ memories will fade and evidence will become stale.” Pagtalunan, 291 22 F.3d at 643. The fact that Plaintiff failed to file a TAC in October 2024 and has 23 still failed to file a TAC after the Court extended this deadline twice, making the 24 new deadline March 31, 2025, demonstrates unreasonable delay. (Dkt. 25.) 25 The fourth factor—availability of less drastic sanctions—favors dismissal. 26 The Court’s prior orders warned Plaintiff that failure to respond might result in a 27 dismissal of this action. (Dkt. 15 at 10, 11.) Indeed, this case was previously 28 dismissed for failure to prosecute. (Dkt. 19.) 1 The fifth factor—public policy favoring a disposition of an action on its 2 | merits—arguably weighs against dismissal here. Pagtalunan, 291 F.3d at 643 (9th 3 | Cir. 2002). However, the effect of this factor 1s somewhat mitigated by the fact 4 | that Plaintiff's SAC failed to state a claim for relief for the reasons explained in the 5 | Court’s September 17, 2024 dismissal order. (Dkt. 15.) 6 Given that the enumerated factors largely support dismissal, this action will 7 || be dismissed pursuant to Rule 41(b) and Local Rule 41-1. Considering all of the 8 || circumstances, and in particular given that Plaintiff is proceeding pro se, the 9 | dismissal shall be without prejudice. 10 IV. 11 CONCLUSION 12 IT IS THEREFORE ORDERED that Judgment will be entered dismissing 13 | this action without prejudice for failure to prosecute. 14 {y capa DATED: May 5, 2025 OW YY

IS DEAN D. PREGERSON

16 UNITED STATES DISTRICT JUDGE 17 | Presented by: 18 "TS nam &. Scot 19 | KAREN E. SCOTT 50 UNITED STATES MAGISTRATE JUDGE

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