Case 5:20-cv-02230-DMG-SHK Document 21 Filed 03/22/22 Page 1 of 6 Page ID #:243

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8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 12 ADA MARIA BENSON, Case No. 5:20-cv-02230-DMG-SHK 13 Plaintiff,

ORDER RE DISMISSAL OF

14 v.

ACTION

15 HEMET POLICE DEPARTMENT, 16 Defendant.

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18 For the following reasons, this case is DISMISSED without prejudice. 19 I. BACKGROUND 20 On October 23, 2020, Plaintiff Ada Maria Benson (“Plaintiff”), proceeding 21 pro se and in forma pauperis (“IFP”), filed a Complaint (“Complaint” or “Compl.”) 22 under 42 U.S.C § 1983 (“§ 1983”) against the Hemet Police Department 23 (“Defendant”) for alleged violations of her constitutional rights by Defendant when 24 Plaintiff was arrested by, what appears to be, one of Defendant’s officers. 25 Electronic Case Filing Number (“ECF No.”) 1, Compl. at 6, 9. On November 30, 26 2020, the Court issued an Order Dismissing Complaint, Without Prejudice, and 27 With Leave to Amend (“Compl. ODLA”). ECF No. 6, Compl. ODLA. On 28 December 7, 2020, Plaintiff filed a First Amended Complaint (“FAC”). ECF No. 7, Case 5:20-cv-02230-DMG-SHK Document 21 Filed 03/22/22 Page 2 of 6 Page ID #:244

FAC.

1 On December 28, 2020, Plaintiff moved to have Defendant held in contempt 2 of Court (“Contempt Motion”). ECF No. 8, Contempt. Mot. On July 27, 2021, 3 Plaintiff filed with this Court what appears to be a brief to the United States Court of 4 Appeals for the Ninth Circuit (“Ninth Circuit”) and a Motion to proceed IFP before 5 the Ninth Circuit. ECF No. 12, Appellant Brief; ECF No. 11, IFP Application. 6 On September 20, 2020, the United States Court of Appeals for the Ninth 7 Circuit dismissed Plaintiff’s appeal for lack of jurisdiction. ECF No. 14, Appeal 8 9 Dismissal. On November 9, 2021, the Court dismissed the FAC with leave to 10 amend (“FAC ODLA”) and ordered Plaintiff to file a Second Amended Complaint 11 (“SAC”) by November 30, 2021. ECF No. 15, FAC ODLA. On December 2, 2021, 12 the Ninth Circuit denied what it construed as a motion for reconsideration filed by 13 Plaintiff. See ECF No. 16, Order Denying Reconsideration Motion. 14 Plaintiff failed to timely file a SAC as ordered, and, instead, filed a response 15 to the ODLA (“ODLA Response”) on November 29, 2021, wherein Plaintiff 16 challenged the jurisdiction of this Court due to having filed an appeal with the Ninth 17 Circuit previously. See ECF No. 17, ODLA Response. 18 On December 9, 2021, the Court issued a “Final Order to Show Cause” 19 (“First Final OSC”), wherein, Plaintiff was “given one final opportunity to comply 20 with the Court’s ODLA” by December 23, 2021. ECF No. 18, First Final OSC at 1 21 (emphasis added). Plaintiff was ordered to show cause why the case should not be 22 dismissed by either: (a) “advis[ing] the Court that Plaintiff does not desire to pursue 23 this action”; (b) “show[ing] good cause in writing, if any exists, why Plaintiff has 24 not timely filed with the Court a SAC”; or (c) “filing a SAC fixing the deficiencies 25 consistent with the Court’s Order in the SAC if Plaintiff wishes to continue 26 litigating those claims.” Id. Plaintiff was warned that “if Plaintiff fail[ed] to move 27 forward with any of the options listed above, the Court may deem such failure as a 28 further violation of a Court order justifying dismissal, and the Court may also deem 2 Case 5:20-cv-02230-DMG-SHK Document 21 Filed 03/22/22 Page 3 of 6 Page ID #:245

such a failure as further evidence of a lack of prosecution on Plaintiff’s part.” Id. at 1 2. On December 10, 2021, the Ninth Circuit issued its formal mandate (“Mandate”). 2 See ECF No. 19, Mandate. 3 On January 19, 2022, the Court issued another “Final Order to Show Cause” 4 (“Final OSC”), in which the Court observed that “because the Ninth Circuit has now 5 denied Plaintiff’s appeal and dismissed the same for lack of jurisdiction, denied 6 Plaintiff’s request for reconsideration, and issued its formal Mandate, there can be 7 no doubt that this Court has jurisdiction over Plaintiff’s claims.” ECF No. 20, Final 8 9 OSC at 2 (citing ECF Nos. 14, 16, 19). As such, the Court “reincorporate[d] its 10 findings, conclusions, and orders from its FAC ODLA, see ECF No. 15, and its 11 [First Final] OSC, see ECF No. 18, which were issued before the Ninth Circuit’s 12 Mandate,” and ordered Plaintiff “one final time, by January 28, 2022, to show cause, 13 why this case should not be dismissed for failure to prosecute and follow Court 14 orders.” Id. (capitalization normalized and emphasis removed). 15 Plaintiff was instructed that Plaintiff could comply with the order by “either: 16 (a) advising the Court that Plaintiff no longer wishes to pursue this action; (b) 17 showing good cause in writing why Plaintiff has not filed a SAC; or (c) filing a SAC 18 in accordance with the instructions provided in the ODLA, as reincorporated by 19 reference [t]herein.” Id. The Clerk of Court was directed to send Plaintiff a copy of 20 the Court’s ODLA and First Final OSC and Plaintiff was “warned that failure to 21 timely perform one of the options listed above will result in the dismissal of this 22 case for failure to prosecute and follow Court orders.” Id. (emphasis in original). 23 As of the date of this Order, Plaintiff has failed to file a SAC, respond to the 24 Court’s Final OSC, or otherwise participate in this litigation. 25 II. LEGAL STANDARD 26 District courts have sua sponte authority to dismiss actions for failure to 27 prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. Wabash 28 R.R. Co., 370 U.S. 626, 629-30 (1962); Hells Canyon Pres. Council v. U.S. Forest 3 Case 5:20-cv-02230-DMG-SHK Document 21 Filed 03/22/22 Page 4 of 6 Page ID #:246

Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating courts may dismiss an action under 1 Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute 2 or comply with the Federal Rules of Civil Procedure or the court’s orders); Ferdik v. 3 Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (ordering dismissal for failure to 4 comply with court orders). 5 In deciding whether to dismiss for failure to prosecute or comply with court 6 orders, a district court must consider five factors: “(1) the public’s interest in 7 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 8 9 risk of prejudice to the defendants; (4) the public policy favoring disposition of 10 cases on their merits; and (5) the availability of less drastic sanctions.” Henderson 11 v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); see also Pagtalunan v. Galaza, 291 12 F.3d 639, 642 (9th Cir. 2002) (setting out five factors similar to those in Henderson). 13 “Dismissal is appropriate ‘where at least four factors support dismissal, or where at 14 least three factors ‘strongly’ support dismissal.’” Neal v. Reslan, No. CV 19-09291 15 PA (ASx), 2020 WL 754366, at *1 (C.D. Cal. Jan. 16, 2020) (quoting Hernandez v. 16 City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (internal citations omitted) 17 (citing Ferdik, 963 F.2d at 1263)). In a case involving sua sponte dismissal, 18 however, the fifth Henderson factor regarding the availability of less drastic 19 sanctions warrants special focus. Hernandez, 138 F.3d at 399. 20 III. DISCUSSION 21 Here, the first two factors—public interest in expeditious resolution of 22 litigation and the Court’s need to manage its docket—weigh in favor of dismissal. 23 Despite being warned in the Final OSC that Plaintiff had “one final opportunity” to 24 comply with the Court’s ODLA and that failure to respond to the Final OSC “will 25 result in the dismissal of this case for failure to prosecute and follow Court 26 orders[,]” Plaintiff has failed to do so. ECF No. 20, Final OSC at 2 (emphasis in 27 original). This failure to prosecute and follow Court orders hinders the Court’s 28 4 Case 5:20-cv-02230-DMG-SHK Document 21 Filed 03/22/22 Page 5 of 6 Page ID #:247

ability to move this case toward disposition and suggests that Plaintiff does not 1 intend to litigate this action diligently. 2 The third factor—prejudice to Defendant—also weighs in favor of dismissal. 3 A rebuttable presumption of prejudice to a defendant arises when a plaintiff 4 unreasonably delays prosecuting an action. See In re Eisen, 31 F.3d 1447, 1452-53 5 (9th Cir. 1994) (citations omitted). Nothing suggests such a presumption is 6 unwarranted in this case, considering that Plaintiff has failed to comply with the 7 Court’s FAC ODLA, First Final OSC, or Final OSC and Plaintiff has not offered 8 9 any excuse for her failure to comply with the Court’s Final OSC or to respond in a 10 timely manner. Thus, this “prejudice” element favors dismissal. 11 The fourth factor—public policy in favor of deciding cases on the merits— 12 ordinarily weighs against dismissal. However, it is Plaintiff’s responsibility to move 13 litigation towards disposition at a reasonable pace and to avoid dilatory and evasive 14 tactics. See Morris v. Morgan Stanley, 942 F.2d 648, 652 (9th Cir. 1991). Plaintiff 15 has not met this responsibility despite having been: (1) instructed on her 16 responsibilities; (2) granted sufficient time in which to discharge them; and 17 (3) warned of the consequences of failure to do so. Under these circumstances, 18 though this policy favors Plaintiff, it does not outweigh Plaintiff’s repeated failure to 19 obey Court orders or to file responsive documents within the time granted. 20 The fifth factor—availability of less drastic sanctions—also weighs in favor 21 of dismissal. The Court cannot move the case toward disposition without Plaintiff’s 22 compliance with Court orders or participation in this litigation. Despite the Court’s 23 attempt to obtain a response, Plaintiff has shown she is either unwilling or unable to 24 comply with Court orders by failing to file responsive documents and failing to 25 otherwise cooperate in prosecuting this action. And, notably, when Plaintiff 26 challenged this Court’s jurisdiction, the Court took the added steps of issuing its 27 Final OSC and incorporating by reference its findings and orders from its FAC 28 ODLA and First Final OSC, and allowed Plaintiff additional time to comply with its 5 Case 4:20-cv-02230-DMG-SHK Document 21 Filed 03/22/22 Page6of6 Page ID #:248

, | Final OSC. Plaintiff, however, failed to timely respond or otherwise participate in 7 | this litigation. Thus, the Court is not aware of any lesser sanction that is available in 3 | this case. See Henderson, 779 F.2d at 1424 (“The district court need not exhaust 4 | every sanction short of dismissal before finally dismissing a case but must explore 5 | possible and meaningful alternatives.”) (citation omitted); Roman v. Smith, No. 6 | 2:18-07909 PA (ADS), 2019 WL 8013120, at *1 (C.D. Cal. Nov. 18, 2019). 7 Accordingly, dismissal of this action, without prejudice, is appropriate here. g IV. CONCLUSION 9 For the reasons discussed above, IT IS HEREBY ORDERED that the case 19 | is DISMISSED without prejudice and all pending motions (ECF Nos. 8, 11) are 1] | DENIED as moot. 12 m. & 14 DATED: March 22, 2022 Lote, °

15 United Stat®s District Judge 16 | Presented by: Vy Wee 18 | HONORABLE SHASHI H. KEWALRAMANI 19 United States Magistrate Judge 20 21 22 23 24 25 26 27 28