Case 5:22-cv-01570-SB-PD Document 9 Filed 02/15/23 Page 1 of 5 Page ID #:68

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOSE LUIS PADILLA, Case No. 5:22-cv-01570-SB-PD

12 Plaintiff, ORDER DISMISSING ACTION 13 v. FOR FAILURE TO

PROSECUTE

14 WSVD MEDICAL, et al. 15 Defendants. 16

17

I. Pertinent Procedural History and Plaintiff’s Claims

18 On September 6, 2022, Plaintiff Jose Luis Padilla, proceeding pro se, 19 filed a Complaint pursuant to 42 U.S.C. § 1983. [Dkt. No. 1.] At the time he 20 filed the Complaint, Plaintiff was confined at the West Valley Detention 21 Center (“WVDC”). [Id.] The Complaint alleges that the jail’s medical staff 22 acted with deliberate indifference to his medical needs by failing to provide 23 Plaintiff with the correct dosage of his prescription medication, causing 24 seizures, failing to give him adequate medical attention during his seizures, 25 and failing to provide him with the proper knee surgery. [Id. at 3-5.] Plaintiff 26 27 28 Case 5:22-cv-01570-SB-PD Document 9 Filed 02/15/23 Page 2 of 5 Page ID #:69

1 named WVDC Medical, Doe Nutritionist, Dr. Chalary, Dr. Nonne, and 2 Brannon Larson as defendants.1 [Id. at 3-4.] 3 The Complaint alleges that Doe Nutritionist failed to put Plaintiff on 4 the correct food plan, causing him to lose weight, bleed out, and have a 5 platelet count as low as 29%. [Id. at 5.] Plaintiff also alleges that he was not 6 properly fed and that Doe Nutritionist was advised of his liver failure. [Id. at 7 3.] Plaintiff further alleges that Dr. Chalary threatened him, that Dr. Nonne 8 failed to do an MRI and surgery on his knee, and that Brannon Larson, who 9 works in classification and/or housing, failed to place Plaintiff in medical 10 housing. [Id. at 4.] 11 On December 12, 2022, the Court screened the Complaint pursuant to 12 28 U.S.C. § 1915(e)(2)(B)(ii) and found that it failed to state a cognizable claim 13 against any named defendant, as required by Rule 8 of the Federal Rules of 14 Civil Procedure. [Dkt. No. 5.] The Court dismissed the Complaint with leave to amend and advised Plaintiff that if he wished to pursue this action, he was 15 to file a first amended complaint no later than January 13, 2022, that 16 corrected the defects identified by the Court in its order. [Id.] A copy of this 17 screening order was mailed to Plaintiff at the WVDC address listed on the 18 Complaint. 19 On December 22, 2022, the screening order was returned in the mail as 20 undeliverable with the notation “rts not in custody.” [Dkt. No. 6.] On 21 January 13, 2023, the Court ordered Plaintiff to provide an updated address 22 to the Court and to show cause why the Court should not recommend that this 23 action be dismissed for failure to prosecute by February 1, 2023. [Dkt. No. 7.] 24 On January 26, 2023, the order to show cause was also returned in the mail 25 as undeliverable with the notation “rts not in custody.” [Dkt. No. 8.] To date, 26 27 28 1 In the Complaint Plaintiff erroneously refers to the West Valley Detention Center (“WVDC”) as “WSVD”. [See Dkt. No. 1. at 2-3.]

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1 Plaintiff has not responded to the initial screening order, the order to show 2 cause, provided an updated address, or otherwise communicated with the 3 Court about his case since filing on September 6, 2022. Accordingly, the case 4 is now subject to dismissal for failure to prosecute pursuant to Rule 41(b) of 5 the Federal Rules of Civil Procedure and Local Rule 41-6. 6 II. Discussion 7 Rule 41(b) grants district courts the authority to sua sponte dismiss 8 actions for failure to prosecute. Link v. Wabash R.R. Co., 370 U.S. 626, 629- 9 30 (1962). In determining whether dismissal for lack of prosecution is 10 warranted, a court must weigh several factors, including: (1) the public’s 11 interest in expeditious resolution of litigation; (2) the court’s need to manage 12 its docket; (3) the risk of prejudice to defendants; (4) the availability of less 13 drastic sanctions; and (5) the public policy favoring the disposition of cases on 14 their merits. Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992). Dismissal is appropriate 15 under the foregoing analysis “where at least four factors support dismissal ... 16 or where at least three factors ‘strongly’ support dismissal.” Hernandez v. 17 City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citations omitted). 18 In this case, the first two factors – public interest in expeditious 19 resolution of litigation and the need to manage the Court’s docket – weigh in 20 favor of dismissal. Plaintiff did not file a first amended complaint or provide 21 the Court his updated address. His failure to file an amended complaint or 22 update his address—or show good cause for his delay—prevents the Court 23 from moving this case toward disposition and shows that Plaintiff does not 24 intend to litigate this action diligently. 25 Arguably, the third factor – prejudice to Defendants – does not counsel 26 in favor of dismissal because Defendants have not been served and may 27 otherwise be unaware that a case has been filed. However, the Ninth Circuit 28

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1 has held that prejudice may be presumed from unreasonable delay. See In re 2 Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994); Moore v. Teflon Commc’ns. 3 Corp., 589 F.2d 959, 967-68 (9th Cir. 1978). Plaintiff’s inaction in this matter 4 is an unreasonable delay. In the absence of any explanation, non-frivolous or 5 otherwise, for Plaintiff’s delay, the Court presumes prejudice. See Laurino v. 6 Syringa Gen. Hosp., 279 F.3d 750, 753 (9th Cir. 2002) (presumption of 7 prejudice can be rebutted by a non-frivolous explanation); Pagtalunan, 291 8 F.3d at 642 (citing Yourish v. California Amplifier, 191 F.3d 983, 991 (9th Cir. 9 1999)). 10 The fourth factor – the availability of less drastic sanctions – ordinarily 11 counsels against dismissal. However, the Court attempted to avoid outright 12 dismissal by giving Plaintiff ample time to communicate with the Court, 13 update the Court with his address, and file an amended complaint. Plaintiff 14 was also expressly warned that failure to comply with the Court’s orders could result in dismissal. [Dkt. Nos. 5, 7.] Thus, the Court explored the only 15 meaningful alternatives to dismissal in its arsenal and found that they were 16 not effective. See Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) 17 (“The district court need not exhaust every sanction short of dismissal before 18 finally dismissing a case, but must explore possible and meaningful 19 alternatives.”) (citation omitted). 20 The fifth factor – the general policy favoring resolution on the merits – 21 ordinarily weighs against dismissal. Pagtalunan, 291 F.3d at 643. It is, 22 however, the responsibility of the moving party to move the case toward 23 disposition on the merits at a reasonable pace and to refrain from dilatory and 24 evasive tactics. Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 25 1991). Because Plaintiff has failed to participate in his own lawsuit, 26 retention of this case would not increase the likelihood of the matter being 27 resolved on its merits. This factor does not weigh in favor of or against 28

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1 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 For the foregoing reasons, this action is dismissed for failure to 5 prosecute. 6 IT IS SO ORDERED. 7 8 Dated: _F__e_b_r_u_a_r_y_ _1_5_, _2_0_2_3_ 9 ____________________________________ 10 HON. STANLEY BLUMENFELD JR.

UNITED STATES DISTRICT JUDGE

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