Case 2:22-cv-00379-DOC-MAR Document 9 Filed 05/25/22 Page 1 of 7 Page ID #:113

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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9 10 PHILLIP LEE BROCK, Case No. 2:22-cv-00379-DOC-MAR 11 Plaintiff, MEMORANDUM AND ORDER

DISMISSING CASE

12 v. 13 STATE OF CALIFORNIA, ET AL., 14 Defendant. 15 16 17 I. 18 INTRODUCTION 19 On January 7, 2022, Phillip Lee Brock (“Plaintiff”), proceeding in forma 20 pauperis (“IFP”) and pro se, constructively filed1 the instant Complaint 21 (“Complaint”). ECF Docket No. (“Dkt.”) 1 at 3. On February 4, 2022, the Court 22 dismissed the Complaint with leave to amend (“ODLA”), granting Plaintiff until 23 March 7, 2022, to file a First Amended Complaint (“FAC”). Dkt. 6 at 8–10. To date, 24 Plaintiff has not filed a FAC. For the reasons below, the Court DISMISSES this 25 action, without prejudice. 26

27 1 Under the “mailbox rule,” when a pro se inmate gives prison authorities a pleading to mail to court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v. 28 Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (citation omitted); Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (stating the “mailbox rule applies to § 1983 suits filed by pro se prisoners”). Case 2:22-cv-00379-DOC-MAR Document 9 Filed 05/25/22 Page 2 of 7 Page ID #:114

1 II. 2 BACKGROUND 3 On January 7, 2022, Phillip Lee Brock (“Plaintiff”), proceeding in forma 4 pauperis (“IFP”) and pro se, constructively filed a Complaint (“Complaint”) against 5 the “State of California/Valley State Prison Healthcare” (“Defendant”). ECF Docket 6 No. (“Dkt.”) 1 at 3. On February 4, 2022, the Court dismissed the Complaint with 7 leave to amend (“ODLA”), granting Plaintiff until March 7, 2022, to either: (1) file a 8 First Amended Complaint (“FAC”); (2) file a notice that he intends to stand on the 9 allegations in the Complaint; or (3) voluntarily dismiss the action. Dkt. 6 at 8–10. 10 The ODLA cautioned Plaintiff that failure to timely file a response to the ODLA 11 “may result” in the dismissal of the Complaint for failure to prosecute. Id. 12 On March 24, 2022, this Court issued an Order to Show Cause (“OSC”) giving 13 Plaintiff until April 13, 2022, to show why this action should not be dismissed for 14 failure to prosecute. Dkt. 7. Plaintiff was warned that, “[f]ailure to respond to the 15 Court’s Order will result in the dismissal of the action.” Id. (emphasis added). 16 On May 2, 2022, this Court issued a second OSC ordering Plaintiff to respond 17 to the Court’s previous Orders. Dkt. 8. Plaintiff was warned that he “must 18 comply…by May 16, 2021, or this action will be dismissed for failure to prosecute.” 19 Id. (emphasis in original). Plaintiff has not corresponded with the Court at all since 20 he filed the Complaint on January 7, 2022. 21 III. 22 DISCUSSION 23 A. APPLICABLE LAW 24 District courts have sua sponte authority to dismiss actions for failure to 25 prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. Wabash 26 R.R. Co., 370 U.S. 626, 629–30 (1962); Hells Canyon Pres. Council v. U.S. Forest 27 Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating courts may dismiss an action under 28 Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute 2 Case 2:22-cv-00379-DOC-MAR Document 9 Filed 05/25/22 Page 3 of 7 Page ID #:115

1 or comply with the Federal Rules of Civil Procedure or the court’s orders); Ferdik v. 2 Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (ordering dismissal for failure to 3 comply with court orders). 4 In deciding whether to dismiss for failure to prosecute or comply with court 5 orders, a district court must consider five (5) factors: “(1) the public’s interest in 6 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 7 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases 8 on their merits; and (5) the availability of less drastic sanctions.” Omstead v. Dell, 9 Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson v. Duncan, 779 F.2d 10 1421, 1423 (9th Cir. 1986)). 11 “[The Ninth Circuit] ‘may affirm dismissal where at least four factors support 12 dismissal . . . or where at least three factors “strongly” support dismissal.’” Yourish v. 13 California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (quoting Hernandez v. City of 14 El Monte, 138 F.3d 393, 399 (9th Cir. 1998)). In a case involving sua sponte 15 dismissal, however, the fifth Henderson factor regarding the availability of less drastic 16 sanctions warrants special focus. Hernandez, 138 F.3d at 399. 17 B. ANALYSIS 18 1. The public’s interest in expeditious resolution of litigation 19 In the instant action, the public’s interest in expeditious resolution of litigation 20 weighs in favor of dismissal. See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 21 2002) (“The public’s interest in expeditious resolution of litigation always favors 22 dismissal.” (quoting Yourish, above) (internal quotation omitted)). Plaintiff has not 23 filed a FAC in compliance with the Court’s February 4, 2022 ODLA or otherwise 24 responded to the Court’s March 24, 2022 or May 2, 2022 OSCs. In fact, Plaintiff has 25 not corresponded with the Court at all since he first filed his Complaint on January 7, 26 2022. Dkt. 1. Given that Plaintiff has failed to interact with the Court for over four 27 (4) months, this factor weighs in favor of dismissal. See Dkt. 1; see also Pagtalunan, 28 3 Case 2:22-cv-00379-DOC-MAR Document 9 Filed 05/25/22 Page 4 of 7 Page ID #:116

1 291 F.3d at 642 (finding that the plaintiff’s failure to pursue the case for almost four 2 (4) months weighed in favor of dismissal). 3 2. The Court’s need to manage its docket 4 The second factor—the Court’s need to manage its docket—likewise weighs in 5 favor of Dismissal. Courts have “the power to manage their dockets without being 6 subject to the endless vexatious noncompliance of litigants.” See Ferdik, 963 F.2d at 7 1261. As such, the second factor looks to whether a particular case has “consumed . . 8 . time that could have been devoted to other cases on the [Court’s] docket.” See 9 Pagtalunan, 291 F.3d at 642; Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th 10 Cir. 2004) (“[R]esources continue to be consumed by a case sitting idly on the court’s 11 docket.”). 12 On February 4, 2022, the Court issued an ODLA ordering Plaintiff to file a 13 FAC by March 7, 2022. Dkt. 6 at 8–10. The ODLA explicitly cautioned Plaintiff 14 “failure to timely file an Amended Complaint may result in this action being 15 dismissed.” Id. at 10. 16 On March 24, 2022, after Plaintiff failed to respond to the ODLA, the Court 17 issued an OSC why the Complaint should not be dismissed for lack of prosecution. 18 Dkt. 7. The Court issued a second OSC on May 2, 2022, warning that failure to 19 respond will result in dismissal. Dkt. 8. 20 Plaintiff has failed to comply, or otherwise respond, to any of the Court’s 21 Orders, all of which warned Plaintiff that his failure to comply could or would result 22 in the recommended dismissal of the Complaint. Plaintiff’s failure to prosecute and 23 follow Court Orders hinders the Court’s ability to move this case toward disposition 24 and suggests Plaintiff does not intend to or cannot litigate this action diligently. 25 Consequently, the Court’s need to manage its docket favors dismissal here. 26 /// 27 /// 28 /// 4 Case 2:22-cv-00379-DOC-MAR Document 9 Filed 05/25/22 Page 5 of 7 Page ID #:117

1 3. The risk of prejudice to Defendant 2 The third factor—prejudice to Defendant(s)—also weighs in favor of dismissal. 3 A rebuttable presumption of prejudice to defendant arises when plaintiffs 4 unreasonably delay prosecution of an action. See In re Eisen, 31 F.3d 1447, 1452–53 5 (9th Cir. 1994) (“[T]he failure to prosecute diligently is sufficient by itself to justify 6 dismissal . . . [t]he law presumes injury from unreasonable delay.”). 7 Nothing suggests such a presumption is unwarranted in this case. Plaintiff has 8 not provided any reason for his failure to comply with either the Court’s ODLA or 9 OSC and for his failure to communicate with the Court since he filed the original 10 Complaint on January 7, 2022. Dkt. 1. Given the length of the delay, the Court finds 11 Plaintiff’s delay in prosecuting this case to be unreasonable. Thus, prejudice is 12 presumed and weighs in favor of dismissal. See, e.g., In re Phenylpropanolamine 13 (PPA) Prod. Liab. Litig., 460 F.3d at 1227 (“The law . . . presumes prejudice from 14 unreasonable delay.”). 15 4. Public policy favoring disposition on the merits 16 The fourth factor—public policy in favor of deciding cases on the merits— 17 ordinarily weighs against dismissal. See In re Phenylpropanolamine (PPA) Prod. Liab. 18 Litig., 460 F.3d at 1228. Here, as it usually does, the fourth factor weighs against 19 dismissal. It is, however, Plaintiff’s responsibility to move towards disposition at a 20 reasonable pace and avoid dilatory and evasive tactics. See Morris v. Morgan Stanley, 21 942 F.2d 648, 652 (9th Cir. 1991). Plaintiff has not discharged this responsibility 22 despite having been: (1) instructed on his responsibilities; (2) granted sufficient time 23 in which to discharge them; and (3) warned of the consequences of failure to do so. 24 See Dkts. 6 at 10; 7; 8. Under these circumstances, and without any other information 25 from Plaintiff, the policy favoring resolution of disputes on the merits does not 26 outweigh Plaintiff’s failure to obey Court Orders or to file responsive documents 27 within the time granted. 28 /// 5 Case 2:22-cv-00379-DOC-MAR Document 9 Filed 05/25/22 Page 6 of 7 Page ID #:118

1 5. Availability of less drastic alternatives 2 The fifth factor—availability of less drastic sanctions—also weighs in favor of 3 dismissal. A “district court need not exhaust every sanction short of dismissal before 4 finally dismissing a case, but must explore possible and meaningful alternatives.” 5 Henderson, 779 F.2d at 1424. Less drastic alternatives to dismissal include warning a 6 party that dismissal could result from failure to obey a court order. See Malone, 833 7 F.2d at 132 n.1. Further, “a district court’s warning to a party that his [or her] failure 8 to obey the court’s order will result in dismissal can satisfy the ‘consideration of 9 alternatives’ requirement.” Ferdik, 963 F.2d at 1262 (citations omitted). 10 Here, the Court cannot move the case toward disposition without Plaintiff’s 11 compliance with Court Orders or participation in this litigation. Plaintiff has shown 12 he is either unwilling or unable to comply with Court Orders by filing responsive 13 documents or otherwise cooperating in prosecuting this action. Given this record, the 14 Court finds that any less drastic alternatives to dismissal would be inadequate to 15 remedy Plaintiff’s failures to obey Court Orders and to prosecute. 16 6. Summary 17 Finally, while dismissal should not be entered unless Plaintiff has been notified 18 dismissal is imminent, see W. Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 19 1523 (9th Cir. 1990), the Court has warned Plaintiff about the potential dismissal in 20 the February 4, 2022 ODLA and in two (2) separate OSCs. See Dkts. 6 at 10; 7; 8. 21 As discussed above, four (4) of the Rule 41(b) factors weigh in favor of 22 dismissal. Accordingly, this action is subject to dismissal. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 6 Case P:22-cv-00379-DOC-MAR Document9 Filed 05/25/22 Page 7of7 Page ID #:119

1 IV. 2 ORDER 3 IT IS THEREFORE ORDERED THAT Petitionet’s case is DISMISSED 4 | without prejudice. ‘ Dated: May 25, 2022 Alun oy Lute 7 HONORABLE DAVID O. CARTER 9 United States District Judge Presented bv: | Sa 10 | MARGO A.ROCCONT ul United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28