Case 2:21-cv-02767-SVW-PD Document Filed 02/04/22 Page1of5 Page ID#:124 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 | CHARLES DUNKENTELL, Case No. 2:21-cv-02767-SVW-PD Plaintiff, ORDER DISMISSING 13 vy. ACTION FOR FAILURE TO

PROSECUTE

4] ALEX VILLANUEVA, et al., '° Defendants. 16 17 1 I. Pertinent Procedural History and Plaintiff's Claims 19 On March 29, 2021, Plaintiff Charles Dunkentell filed a pro se civil 20 rights complaint pursuant to 42 U.S.C. § 1983 alleging that he was physically 51 assaulted in violation of his rights under the Eighth Amendment while he was

3 in custody at the Los Angeles County Men’s Central Jail “LACMCJ”). [Dkt. 33 No. 1 at 5.] Plaintiff concurrently filed an application to proceed in forma

34 pauperis. [Dkt. No. 2.]| He sues Defendants Los Angeles County Sheriff Alex

35 Villanueva and Los Angeles County Sheriff's Department Deputies Does 1 through 4, alleging that they used excessive force and failed to protect him in 7 violation of the Eighth Amendment. [Dkt. No. 1 at 3-5.] He seeks monetary . and punitive damages, along with declaratory relief. [Jd. at 6.]

Case 2:21-cv-02767-SVW-PD Document □□ Filed 02/04/22 Page 2of5 Page ID#:125

| On April 8, 2021, the Court screened the Complaint pursuant to 28 2 || U.S.C. § 1915(e)(2)(B)(i) and found that it failed to state a claim against 3 || Defendant Sheriff Villanueva but arguably stated a colorable excessive force 4 || claim against Defendant Deputies Does 1 through 4. [Dkt. No. 5.] Plaintiff 5 || was granted leave to conduct discovery to obtain the identities of the Doe 6 || Deputies and ordered to substitute the full names of those Doe Defendants in 7 || a First Amended Complaint. [Jd.] The Court ordered Plaintiff to file, no later 8 || than May 28, 2021, a First Amended Complaint that corrected the defects 9 || identified by the Court in its April 8, 2021 Order. [Id.] 10 Plaintiff requested, and received, three extensions of time to file a First 11 | Amended Complaint. [See Dkt. Nos. 8-10, 12, 15, 16.] Plaintiffs First 12 || Amended Complaint was due on October 15, 2021. [Dkt. No. 16.] Plaintiff, 13 || however, failed to file his First Amended Complaint and has not 14 || communicated with the Court about his case since August 4, 2021. 15 On November 2, 2021, the Court ordered Plaintiff to show cause by 16 || November 16, 2021 why the Court should not recommend that this action be 7 dismissed for failure to prosecute. [Dkt. No. 17.] The Court mailed the Order ig || to Show Cause to the Wasco State Prison address provided by Plaintiff in his 19 notice of change of address. [See Dkt. No. 11.] On November 15, 2021, this 20 Court received the Order in the mail back from Wasco State Prison marked >] “return to sender” and “unable to forward.” [Dkt. No. 18.] The Court 9 previously cautioned Plaintiff that he must keep the Court apprised of his

33 address at all times and that his failure to do so may result in the case being 54 dismissed for failure to prosecute. [See Dkt. No. 3.] See also Local Rule 83-

35 2.4; Local Rule 41-6.

6 According to the California Department of Corrections and Rehabilitation’s (“CDCR”) online inmate locator system, Plaintiff is no longer in the custody of the CDCR. See https://inmatelocator.cdcr.ca.gov/search.aspx

Case 2:21-cv-02767-SVW-PD Document Filed 02/04/22 Page 3of5 Page ID #:126 2 || (CDCR Number BM8911). To date, Plaintiff has not provided the Court with 3 || an updated address, and he has not responded to the Order to Show Cause or 4 || otherwise communicated with the Court about his case. Accordingly, the case 5 || is now subject to dismissal for Plaintiffs failure to prosecute pursuant to Rule 6 || 41(b) of the Federal Rules of Civil Procedure and Local Rule 41-6. 7 Il. Discussion 8 Rule 41(b) grants district courts the authority to swa sponte dismiss 9 || actions for failure to prosecute. Link v. Wabash R.R. Co., 370 U.S. 626, 629- 10 || 30 (1962). In determining whether dismissal for lack of prosecution is 11 || warranted, a court must weigh several factors, including: (1) the public’s 12 || interest in expeditious resolution of litigation; (2) the court’s need to manage 13 || its docket; (3) the risk of prejudice to defendants; (4) the availability of less 14 || drastic sanctions; and (5) the public policy favoring the disposition of cases on 15 || their merits. Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002); Ferdik 16 || v- Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992). Dismissal is appropriate 17 || under the foregoing analysis “where at least four factors support dismissal ... ig || oF where at least three factors ‘strongly’ support dismissal.” Hernandez v. 19 City of El Monte, 138 F.3d 398, 399 (9th Cir. 1998) (citations omitted). 20 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 9 favor of dismissal. Plaintiff has not provided the Court with his updated 33 address nor did he file his First Amended Complaint. Plaintiffs failure to

54 update his address, file a First Amended Complaint, or show good cause for

35 his delay prevents the Court from moving this case toward disposition and

6 shows that Plaintiff does not intend to litigate this action diligently. Arguably, the third factor — prejudice to Defendants — does not counsel in favor of dismissal because Defendants have not been served and are

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! || otherwise unaware that a case has been filed. However, the Ninth Circuit has 2 || held that prejudice may be presumed from unreasonable delay. See In re 3 || Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994); Moore v. Teflon Comme'ns. 4 || Corp., 589 F.2d 959, 967-68 (9th Cir. 1978). Plaintiffs inaction in this matter 5 || is an unreasonable delay. In the absence of any explanation, non-frivolous or 6 || otherwise, for Plaintiffs delay, the Court presumes prejudice. See Laurino v. 7 || Syringa Gen. Hosp., 279 F.3d 750, 753 (9th Cir. 2002) (presumption of 8 || prejudice can be rebutted by a non-frivolous explanation); Pagtalunan, 291 9 || F.8d at 642 (citing Yourish v. California Amplifier, 191 F.3d 988, 991 (9th Cir. 10 || 1999)). 11 The fourth factor — the availability of less drastic sanctions — ordinarily 12 || counsels against dismissal. However, the Court attempted to avoid outright 13 || dismissal by giving Plaintiff ample time to communicate with the Court and 14 || file a First Amended Complaint. Plaintiff was also expressly warned that 15 || failure to comply with the Court’s orders could result in dismissal. [See Dkt. 16 || Nos. 3, 17.] Thus, the Court explored the only meaningful alternatives to 7 dismissal in its arsenal and found that they were not effective. See Henderson ig || & Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (“The district court need not 19 exhaust every sanction short of dismissal before finally dismissing a case, but 20 must explore possible and meaningful alternatives.”) (citation omitted). >] The fifth factor — the general policy favoring resolution on the merits —

9 ordinarily weighs against dismissal. Pagtalunan, 291 F.3d at 648. It is, 33 however, the responsibility of the moving party to move the case toward

54 disposition on the merits at a reasonable pace and to refrain from dilatory and

35 evasive tactics. Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir.

6 1991). Because Plaintiff has failed to participate in his own lawsuit, it does not appear that retention of this case would increase the likelihood of the matter being resolved on its merits. This factor does not weigh in favor of or

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! || against dismissal. 2 In sum, four out of the five factors support dismissal. The Court 3 | concludes that dismissal for failure to prosecute is warranted. 4] IT IS SO ORDERED. 6 || Dated: February 4, 2022 ’

UNITED STATES MAGISTRATE JUDGE

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