Case 8:22-cv-00025-FLA-PD Document 13 Filed 08/15/22 Page 1 of 5 Page ID #:64

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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11 JAMES LOWTHER, Case No. 8:22-cv-00025-FLA (PD) 12

13 Plaintiff, ORDER DISMISSING ACTION

FOR FAILURE TO

14 v.

PROSECUTE

15 CITY OF NEWPORT BEACH, et al., 16 Defendants. 17

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1 I. Pertinent Procedural History and Plaintiff’s Claims 2 On January 7, 2022, Plaintiff James Lowther (“Plaintiff”), a California 3 resident proceeding pro se, filed a Complaint against Defendants Marissa Sur (a 4 claims risk manager for the City of Newport Beach-Human Resources Department), 5 Newport Beach Police Officer J. Duenas, Newport Beach Police Detective R. 6 Henry, and Newport Beach Police Detective William Depweg. Dkt. 1 at 2-3. The 7 Complaint purports to raise claims for police misconduct, threats, intimidation, and 8 a violation of the Health Insurance Portability and Accountability Act (“HIPAA”). 9 Id. at 1, 6-9. Plaintiff seeks compensatory and punitive damages, along with 10 “reconsideration of a fair criminal process for a new criminal process by court 11 attorneys at Harbor Justice Center.” Id. at 10. Plaintiff also filed a request to 12 proceed in forma pauperis (“IFP Request”). Dkt. 2] The Court granted Plaintiff’s 13 IFP Request. Dkt. 7. 14 On February 2, 2022, the court screened the Complaint pursuant to 28 U.S.C. 15 § 1915(e)(2)(B) and dismissed the Complaint for: (1) failing to adhere to Federal 16 Rule of Civil Procedure 8; (2) failing to state a cognizable constitutional claim 17 under 42 U.S.C. § 1983; (3) impermissibly raising federal criminal law claims 18 against Defendants; (4) failing to state a claim under HIPAA; (5) failing to state a 19 discrimination claim under 42 U.S.C. § 2000; and (6) failing to state claims under 20 34 U.S.C. §§ 12601 and 10228. Dkt. 6. The Order granted Plaintiff leave to file 21 an amended complaint by March 1, 2022. Id. 22 On March 1, 2022, Plaintiff filed a First Amended Complaint (“FAC”) 23 against Defendants Marissa Sur, Newport Beach Police Officer J. Duenas, Newport 24 Beach Police Detective R. Henry, and Newport Beach Police Detective William 25 Depweg. Dkt. 9 at 3-4. The FAC purports to raise three claims for “claim 26 grievance,” “fabrication of court evidence,” and “police intimidation.” Id. at 3. 27 Plaintiff seeks punitive damages in the amount of $3 million dollars. Id. at 6. 28 2 Case 8:22-cv-00025-FLA-PD Document 13 Filed 08/15/22 Page 3 of 5 Page ID #:66

1 On March 7, 2022, the court screened the FAC pursuant to 28 U.S.C. § 2 1915(e)(2)(B) and dismissed the FAC for: (1) failing to adhere to Federal Rule of 3 Civil Procedure 8; (2) failing to state a cognizable constitutional claim under 42 4 U.S.C. § 1983; (3) impermissibly raising federal criminal law claims against Ms. 5 Sur; (4) failing to state a claim under 34 U.S.C. § 12601; and (5) failing to state a 6 “discriminatory harassment” claim. Dkt. 10. The Order granted Plaintiff leave to 7 file a Second Amended Complaint by April 1, 2022. Id. 8 On April 15, 2022, the court issued an Order to Show Cause (the “OSC”) 9 after Plaintiff failed to file a Second Amended Complaint. Dkt. 11. The OSC 10 ordered Plaintiff to file either: (1) a request setting forth good cause for an 11 extension of time; or (2) a Second Amended Complaint. Id. The OSC warned 12 Plaintiff that failure to comply by April 29, 2022, may result in dismissal for failure 13 to prosecute pursuant to Fed. R. Civ. P. 41(b) and Local Rule 41-1. 14 To date, Plaintiff has failed to comply with the March 7, 2022 Order and the 15 April 15, 2022 OSC, and has not otherwise communicated with the court about his 16 case. Accordingly, the case is now subject to dismissal for Plaintiff’s failure to 17 prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and Local 18 Rule 41-1. 19

II. Discussion

20 Rule 41(b) grants district courts the authority to sua sponte dismiss actions 21 for failure to prosecute. Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962). In 22 determining whether dismissal for lack of prosecution is warranted, a court must 23 weigh several factors, including: (1) the public’s interest in expeditious resolution 24 of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to 25 defendants; (4) the availability of less drastic sanctions; and (5) the public policy 26 favoring the disposition of cases on their merits. Pagtalunan v. Galaza, 291 F.3d 27 639, 642 (9th Cir. 2002); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 28 3 Case 8:22-cv-00025-FLA-PD Document 13 Filed 08/15/22 Page 4 of 5 Page ID #:67

1 1992). Dismissal is appropriate under the foregoing analysis “where at least four 2 factors support dismissal ... or where at least three factors ‘strongly’ support 3 dismissal.” Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) 4 (citations omitted). 5 In this case, the first two factors – public interest in expeditious resolution of 6 litigation and the need to manage the court’s docket – weigh in favor of dismissal. 7 Plaintiff has not filed an amended complaint. Plaintiff’s failure to file a Second 8 Amended Complaint or show good cause for his delay prevents the court from 9 moving this case toward disposition and shows that Plaintiff does not intend to 10 litigate this action diligently. 11 Arguably, the third factor – prejudice to Defendants – does not counsel in 12 favor of dismissal because Defendants have not been served and may otherwise be 13 unaware that a case has been filed. However, the Ninth Circuit has held that 14 prejudice may be presumed from unreasonable delay. See In re Eisen, 31 F.3d 15 1447, 1452-53 (9th Cir. 1994); Moore v. Teflon Commc’ns. Corp., 589 F.2d 959, 16 967-68 (9th Cir. 1978). Plaintiff’s inaction in this matter is an unreasonable delay. 17 In the absence of any explanation, non-frivolous or otherwise, for Plaintiff’s delay, 18 the court presumes prejudice. See Laurino v. Syringa Gen. Hosp., 279 F.3d 750, 19 753 (9th Cir. 2002) (presumption of prejudice can be rebutted by a non-frivolous 20 explanation); Pagtalunan, 291 F.3d at 642 (citing Yourish v. California Amplifier, 21 191 F.3d 983, 991 (9th Cir. 1999)). 22 The fourth factor – the availability of less drastic sanctions – ordinarily 23 counsels against dismissal. However, the court attempted to avoid outright 24 dismissal by giving Plaintiff ample time and several opportunities to communicate 25 with the court and file an amended complaint. Plaintiff was also expressly warned 26 that failure to comply with the court’s orders could result in dismissal. See Dkts. 27 10, 11. Thus, the court explored the only meaningful alternatives to dismissal in its 28 4 Case 8:22-cv-00025-FLA-PD Document13 Filed 08/15/22 Page5of5 Page ID #:68

1 || arsenal and found that they were not effective. See Henderson v. Duncan, 779 F.2d 2 |} 1421, 1424 (9th Cir. 1986) (“The district court need not exhaust every sanction 3 || short of dismissal before finally dismissing a case, but must explore possible and 4 || meaningful alternatives.”’) (citation omitted). 5 The fifth factor — the general policy favoring resolution on the merits — 6 || ordinarily weighs against dismissal. Pagtalunan, 291 F.3d at 643. It is, however, 7 || the responsibility of the moving party to move the case toward disposition on the 8 || merits at a reasonable pace and to refrain from dilatory and evasive tactics. Morris 9 || v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991). Because Plaintiff has 10 || failed to participate in his own lawsuit, it does not appear that retention of this case 11 || would increase the likelihood of the matter being resolved on its merits. This factor 12 || does not weigh in favor of or against dismissal. 13 In sum, four of the five factors support dismissal, and the court concludes 14 || that dismissal for failure to prosecute is warranted. This matter is hereby 15 |} DISMISSED for failure to prosecute. 16 IT IS SO ORDERED. 17 |} Dated: August 15, 2022

19 FERNANDO L. AENLLE-ROCHA 20 United States District Judge 21 99 Presented by: 93 Solace Lona hoe_ Patricia Donahue 24 | United States Magistrate Judge 25 26 27 28