Case 2:21-cv-04813-VAP-JPR Document 13 Filed 01/19/22 Page 1 of 3 Page ID #:45

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 LARRY D. CLAY, ) Case No. CV 21-4813-VAP (JPR) ) 11 Plaintiff, ) ORDER DISMISSING ACTION FOR ) FAILURE TO PROSECUTE AND FAILURE 12 v. ) TO STATE A CLAIM ) 13 GAVIN NEWSOM et al., ) ) 14 Defendants. ) ) 15 ) 16 On June 7, 2021, Plaintiff, a state prisoner proceeding pro 17 se, filed in the Eastern District of California a civil-rights 18 action against four doctors, alleging various constitutional 19 claims arising from medical treatment he had received (or not) 20 during his incarceration. He was subsequently granted leave to 21 proceed in forma pauperis. On June 14, 2021, the Eastern 22 District transferred the lawsuit here. 23 On August 3, 2021, the Magistrate Judge dismissed the 24 Complaint with leave to amend because it failed to state any 25 claim. She advised Plaintiff that he could file objections to 26 her order and that if he failed to timely file an amended 27 complaint correcting the deficiencies she had pointed out, his 28 lawsuit might be dismissed. Plaintiff filed a First Amended 1 Case 2:21-cv-04813-VAP-JPR Document 13 Filed 01/19/22 Page 2 of 3 Page ID #:46

1 Complaint on September 9, 2021, suing two of the same doctors as 2 well as the Warden and the Governor. The Magistrate Judge 3 dismissed that complaint too, on November 15, 2021, because it 4 also failed to state a claim, and she again advised him that he 5 could file objections and warned him that his failure to timely 6 file an amended complaint in compliance with the dismissal order 7 could result in his lawsuit being dismissed. Any second amended 8 complaint was due December 13, 2021. To date Plaintiff has 9 neither filed a SAC nor requested an extension of time to do so. 10 Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (per 11 curiam), examined when it is appropriate to dismiss a pro se 12 plaintiff’s lawsuit for failure to prosecute. See also Link v. 13 Wabash R.R., 370 U.S. 626, 629-30 (1962) (“The power to invoke 14 [dismissal] is necessary in order to prevent undue delays in the 15 disposition of pending cases and to avoid congestion in the 16 calendars of the District Courts.”). A court must consider “(1) 17 the public’s interest in expeditious resolution of litigation; 18 (2) the court’s need to manage its docket; (3) the risk of 19 prejudice to the defendants; (4) the public policy favoring 20 disposition of cases on their merits[;] and (5) the availability 21 of less drastic sanctions.” Carey, 856 F.2d at 1440 (citation 22 omitted). Unreasonable delay creates a rebuttable presumption of 23 prejudice to the defendants that can be overcome only with an 24 affirmative showing of just cause by the plaintiff. See In re 25 Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994). 26 Here, the first, second, third, and fifth Carey factors 27 militate in favor of dismissal. In particular, Plaintiff has 28 offered no explanation for his failure to file another amended 2 ase 2:21-cv-04813-VAP-JPR Document13 Filed 01/19/22 Page3of3 Page ID#:47

1 |} complaint. Thus, he has not rebutted the presumption of 2 || prejudice to Defendants. No less drastic sanction is available, 3}/as the FAC fails to state a claim and cannot be ordered served, 4]/ and Plaintiff is apparently unable or unwilling to comply with 5 |} the Court’s instructions for fixing his allegations. Because 6]}/none of his claims can be ordered served, the Court is unable to 7 ||/manage its docket. Although the fourth Carey factor weighs 8 || against dismissal — as it always does — together the other 9} factors outweigh the public’s interest in disposing of the case 10 }on its merits. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261-62 11 ]} (9th Cir. 1992) (as amended) (upholding dismissal of pro se 12 | civil-rights action for failure to timely file amended complaint 13 |} remedying deficiencies in caption); Baskett v. Quinn, 225 F. 14 |] App’ x 639, 640 (9th Cir. 2007) (upholding dismissal of pro se 15 |} civil-rights action for failure to state claim or timely file 16 || amended complaint). 17 ORDER 18 Accordingly, this action is dismissed for failure to 19 |} prosecute and failure to state a claim. The Court has read and 20} accepts the Magistrate Judge’s August 3 and November 15, 2021 21} orders. 22 LET JUDGMENT BE ENTERED ACCORDINGLY. 23 * OL Phe 24 || DATED: January 19, 2022 Vigna ,

VIRGINIA A. PHILLIPS

25 U.S. DISTRICT JUDGE 26 || Presented by:

Jeah Rosenbluth 281 U.S. Magistrate Judge