Case 2:21-cv-07789-MWF-KES Document 27 Filed 08/30/22 Page 1 of 6 Page ID #:166

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 JOSE P. MITCHELL, Case No. 2:21-cv-07789-MWF-KES

12 Plaintiff,

13 v. ORDER DIS MISSING ACTION

WITHOUT PREJUDICE FOR

14 LOS ANGELES COUNTY FAILURE TO PROSECUTE

15 SHERIFF’S DEPARTMENT, et al.,

16 Defendants.

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19 I.

20 BACKGROUND 21 In September 2021, Jose P. Mitchell (“Plaintiff”), an inmate in state custody, 22 filed what appeared to be a pro se civil rights complaint under 42 U.S.C. § 1983 23 against government entities, officers, and/or employees. (“Complaint” at Dkt. 1.) 24 The Complaint alleged that the L.A. Sheriff’s Department had “fail[ed] to social 25 distance” prisoners at a county jail in compliance with COVID-19 protocols. (Id. at 26 1.) 27 The Court reviewed the Complaint under the Prison Litigation Reform Act 28 1 Case 2:21-cv-07789-MWF-KES Document 27 Filed 08/30/22 Page 2 of 6 Page ID #:167

1 (“PLRA”), 28 U.S.C. § 1915A(b), and dismissed it with leave to amend. (Dkt. 4.) 2 The Court found that the Complaint failed to comply with Federal Rule of Civil 3 Procedure 8, because it did not explain what relief Plaintiff was seeking or name 4 any specific Defendants. (Id. at 1.) The Court also noted that any claims for 5 injunctive relief might be moot, because although Plaintiff was housed at a county- 6 run when he drafted the Complaint, it appeared he had been transferred to a 7 different facility run by the state of California. (Id. at 1-2.) 8 In November 2021, Plaintiff filed a First Amended Complaint. (Dkt. 5.) It 9 appeared to allege violations of Plaintiff’s rights under the Cruel and Unusual 10 Punishment Clause of the Eighth Amendment because: (a) L.A. Sheriff Alex 11 Villanueva failed to implement policies at the jail consistent with Centers for 12 Disease Control’s recommendations for protecting inmates from COVID-19; and 13 (b) pursuant to jail policy, Plaintiff had been required to stay inside a dorm for a 14 prolonged period, in close proximity to sick inmate(s) and without access to the 15 outdoors, which caused him psychiatric distress requiring professional treatment. 16 The claims were brought against Sheriff Villanueva in his official capacity, and 17 Plaintiff sought monetary compensation. (Id. at 3, 6.) 18 On November 18, 2021, the Court dismissed the First Amended Complaint 19 with leave to amend. (Dkt. 6.) The Court found that Plaintiff failed to articulate a 20 “custom, policy, or practice” that violated his rights—as is necessary to bring a 21 claim against the Sheriff in his official capacity—because he failed to explain why 22 or how he believed the Sheriff’s Department’s policies related to COVID-19 were 23 deficient. (Id. at 3-4.) 24 The Court initially gave Plaintiff until December 17, 2021 to respond to the 25 dismissal order by filing a Second Amended Complaint, a notice of voluntary 26 dismissal, or a notice of intent to proceed with the First Amended Complaint. (Dkt. 27 6 at 4-5.) The Court extended this deadline several times after mail addressed to 28 Plaintiff was returned (Dkt. 16) and in response to several requests from Plaintiff 2 Case 2:21-cv-07789-MWF-KES Document 27 Filed 08/30/22 Page 3 of 6 Page ID #:168

1 for more time (Dkt. 17, 18, 20, 21, 23). 2 After the May 18, 2022 deadline to respond to the Court’s order expired 3 without a response from Plaintiff, the Court issued an order to show cause (“OSC”) 4 to Plaintiff to show why the action should not be dismissed for lack of prosecution. 5 (Dkt. 24.) The Court warned Plaintiff that if he “fail[ed] to respond to this Order to 6 Show Cause, the Court may dismiss this action for lack of prosecution and/or 7 failure to follow the Court’s orders.” (Id. at 2.) In response, Plaintiff requested and 8 was granted an extension until August 5, 2022 to respond to the dismissal order. 9 (Dkt. 25, 26.) However, as of the date of this order, the Court has not received any 10 further filings from Plaintiff. 11 II. 12 LEGAL STANDARD 13 A district court may dismiss an action for failure to prosecute, failure to 14 follow court orders, or failure to comply with the federal or local rules. See Fed. R. 15 Civ. P. 41(b); Link v. Wabash R. Co., 370 U.S. 626, 629-30 (1962); Ghazali v. 16 Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). Central District of California 17 Local Rule 41-1 provides, “Civil suits which have been pending for an 18 unreasonable period of time without any action having been taken therein may, 19 after notice, be dismissed for want of prosecution.”1 20 The Court has discretion to dismiss the action with or without prejudice. See 21 Fed. R. Civ. P. 41(b) (“[u]nless the dismissal order states otherwise,” or certain 22 exceptions apply, a dismissal pursuant to Federal Rule of Civil Procedure 41(b) 23 “operates as an adjudication on the merits”); Local Rule 41-2 (“[u]nless the Court 24 provides otherwise, any dismissal pursuant to [Local Rule] 41-1 shall be without 25 prejudice”); Al-Torki v. Kaempen, 78 F.3d 1381, 1385 (9th Cir. 1996) (“Dismissal 26

27 1 The Local Rules of the U.S. District Court for the Central District of California are available online at: https://www.cacd.uscourts.gov/court-procedures/local-rules. 28 3 Case 2:21-cv-07789-MWF-KES Document 27 Filed 08/30/22 Page 4 of 6 Page ID #:169

1 with prejudice and default on counterclaims, for willful and inexcusable failure to 2 prosecute, are proper exercises of discretion under Federal Rules of Civil Procedure 3 41(b), 16(f), and the inherent power of the court.”). 4 In determining whether to dismiss a case for failure to prosecute or failure to 5 comply with court orders, the Ninth Circuit has instructed district courts to consider 6 the following five factors: (1) the public’s interest in expeditious resolution of 7 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 8 defendants; (4) the availability of less drastic sanctions; and (5) the public policy 9 favoring disposition of cases on their merits. In re Phenylpropanolamine (PPA) 10 Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006). The test is not 11 “mechanical,” but provides a “non-exhaustive list of things” to “think about.” 12 Valley Eng’rs v. Elec. Eng’g Co., 158 F.3d 1051, 1057 (9th Cir. 1998). 13 III. 14 ANALYSIS 15 Here, the first two factors favor dismissal. The first factor—the public’s 16 interest in the expeditious resolution of litigation—“always favors dismissal.” 17 Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). The second factor— 18 the Court’s need to manage its docket—favors dismissal here because Plaintiff’s 19 “noncompliance has caused [this] action to come to a complete halt, thereby 20 allowing [him] to control the pace of the docket rather than the Court.” Id. (internal 21 quotations marks omitted). 22 The third factor—prejudice to Defendant—weighs in favor of dismissal, 23 although perhaps not as strongly as some of the other factors. Because this Court 24 dismissed the complaint on screening, Defendant has not been served. See 25 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (“[T]he government has 26 not been ordered to respond to Pagtalunan’s habeas petition. We have previously 27 recognized that pendency of a lawsuit is not sufficiently prejudicial in and of itself 28 to warrant dismissal.”); Hunter v. Sandoval, No. 17-cv-09257-CJC-SHK, 2018 U.S. 4 Case 2:21-cv-07789-MWF-KES Document 27 Filed 08/30/22 Page 5 of 6 Page ID #:170

1 Dist. LEXIS 210543 at *5, 2018 WL 6570870 at *2 (C.D. Cal. Dec. 12, 2018) 2 (finding no prejudice to a defendant who had not yet been served). On the other 3 hand, a rebuttable presumption of prejudice to the defendants arises when a plaintiff 4 unreasonably delays prosecution of an action, In re Eisen, 31 F.3d 1447, 1452-53 5 (9th Cir. 1994), and unnecessary delay “inherently increases the risk that witnesses’ 6 memories will fade and evidence will become stale.” Pagtalunan, 291 F.3d at 643. 7 The fourth factor—availability of less drastic sanctions—favors dismissal. 8 The Court’s prior OSC warned Plaintiff that failure to respond might result in a 9 dismissal of this action. (Dkt. 24.) See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 10 (9th Cir. 1992) (“a district court’s warning to a party that his failure to obey the 11 court’s order will result in dismissal can satisfy the ‘consideration of alternatives’ 12 requirement”) (citation omitted). 13 The fifth factor—public policy favoring a disposition of an action on its 14 merits—arguably weighs against dismissal here. Pagtalunan v. Galaza, 291 F.3d 15 639, 643 (9th Cir. 2002). However, the effect of this factor is somewhat mitigated 16 by the fact that Plaintiff’s Complaint and First Amended Complaint failed to state a 17 claim for relief for the reasons explained in the Court’s dismissal orders. (Dkt. 4, 18 6.) 19 Given that the enumerated factors largely support dismissal, this action will 20 be dismissed pursuant to Rule 41(b) and Local Rule 41-1. Considering all of the 21 circumstances, and in particular given that Plaintiff is incarcerated and proceeding 22 pro se, the dismissal shall be without prejudice. 23 // 24 // 25 // 26 // 27 // 28 // 5 Case 2:21-cv-07789-MWF-KES Document 27 Filed 08/30/22 Page6of6 Page !ID#:171

1 IV. 2 CONCLUSION 3 IT IS THEREFORE ORDERED that Judgment will be entered dismissing 4 | this action without prejudice for failure to prosecute. = 5 □ i, Lh 6 | DATED: August 30, 2022 f W 7 MICHAEL W. FITZGE

UNITED STATES DISTRICT JUDGE

9 | Presented by: | Tous. Seste Il | KAREN E. SCOTT 12 | UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28