Case 2:22-cv-05478-CBM-MRW Document 17 Filed 02/23/23 Page 1 of 5 Page ID #:69

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2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE CENTRAL DISTRICT OF CALIFORNIA 11 12 Case No. CV 22-5478 CBM (MRW) 13 GREGORY FRANLIN,

ORDER DISMISSING ACTION

14 Plaintiff,

WITHOUT LEAVE TO AMEND

15 v.

FRCP 41

16 I. MIJARES, et al., 17 Defendants. 18 19 The Court dismisses this action for failure to state a claim upon 20 which relief may be granted. 21 * * * 22 1. This is a pro se prisoner civil rights action. Plaintiff’s original 23 complaint alleged that several correctional officers at Plaintiff’s prison 24 “retailiated” against him when Plaintiff refused to accept a transfer to a 25 cell with a cellmate. Plaintiff contended that he was placed in detention 26 because of “previous complaints he brought against numerous officers.” 27 (Docket # 3 at 6-7.) 28 Case 2:22-cv-05478-CBM-MRW Document 17 Filed 02/23/23 Page 2 of 5 Page ID #:70

1 2. Pursuant to 28 U.S.C. §§ 1915(e) and 1915A, Magistrate Judge 2 Wilner screened the complaint. Judge Wilner concluded that Plaintiff 3 failed to state a plausible cause of action against any of the officers. 4 Notably, the complaint alleged no facts from which to infer that any of the 5 guards knew of his previous lawsuits or grievances, or that they put 6 Plaintiff in the SHU because of them. (Docket # 9 at 1-3.) As a result, 7 Plaintiff failed to properly plead the elements of a First Amendment 8 retaliation claim. Rhodes v. Robinson, 408 F.3d 559, 567-568 (9th Cir. 9 2005) (retaliation cause of action includes element that a state actor took 10 adverse action against prisoner “because of” her/his protected conduct); 11 Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (same). 12 3. Additionally, to the extent that Plaintiff contended that the 13 guards retaliated against him because of his single-cell status, that was not 14 enough to support a legitimate Section 1983 claim. The First Amendment 15 of the U.S. Constitution does not include a right to a prison cell without a 16 roommate, so an adverse action from prison staff could not have violated 17 Plaintiff’s civil rights. Entler v. Gregoire, 872 F.3d 1031, 1039 (9th Cir. 18 2017). 19 4. Judge Wilner’s screening order gave Plaintiff leave to amend 20 his complaint. (Docket # 9.) Plaintiff subsequently filed his First Amended 21 Complaint. (Docket # 14.) However, the FAC pled even fewer relevant 22 facts about Plaintiff’s claim. Notably, Plaintiff admitted that he threatened 23 to file a grievance against the guards after he refused the housing 24 assignment and they put him in detention. From this, Judge Wilner 25 observed that “the face of the [amended] complaint shows that the guards 26 didn’t retaliate against Plaintiff based on his grievances” filed before the 27 incident. (Docket # 15.) 28 2 Case 2:22-cv-05478-CBM-MRW Document 17 Filed 02/23/23 Page 3 of 5 Page ID #:71

1 5. Judge Wilner again dismissed the pleading with leave to 2 amend. In response, Plaintiff candidly wrote to the Court to state that 3 “there is nothing additional[ ] Plaintiff could add” to his claim. (Docket 4 # 16 at 1.) Plaintiff – an experienced prison-based litigant who has filed 5 over a dozen civil actions in this district to date – declined to amend his 6 complaint further. He merely stated his belief that the guards’ “arbitrary 7 actions for complaining about prison conditions” violated his rights.1 (Id.) 8 * * * 9 6. Rule 41(b) provides that if a plaintiff “fails to prosecute or to 10 comply with these rules or a court order, a defendant may move to dismiss 11 the action or any claim against it.” Dismissal also may be ordered by the 12 Court sua sponte. Link v. Wabash R.R., 370 U.S. 626, 629-30 (1962). 13 7. Rule 41(b) specifically authorizes a court to dismiss a civil 14 action when a plaintiff has not filed a required pleading “after being given 15 leave to do so and has not notified the court of his intention not to file” that 16 document. Harris v. Magnum, 863 F.3d 1133, 1142 (9th Cir. 2017). 17 Rule 41(b) applies when a court “mandate[s] the filing” of a pleading and 18 “indicate[s] that failure to do so would result in dismissal” under the rule. 19 Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 892 (9th Cir. 20 2019). 21 22 1 The events that are the subject of this lawsuit occurred in 23 April 2018. (Docket # 3 at 5.) Plaintiff did not commence this federal action until August 2022. As the state attorney general argues in a parallel action that 24 Judge Wilner served on the defense (Franklin v. Aguirre, No. CV 22-5479 CBM (MRW) (C.D. Cal.)), Plaintiff is serving a life sentence and is not eligible for 25 statutory tolling of the limitations period under CCP § 352.1(a). From this, it is highly likely that Plaintiff’s action is untimely as a matter of law under the two- 26 year statute of limitations applicable to civil rights actions in California.

27 However, because this issue was not raised in the screening orders in this action, the Court declines to address the untimeliness of Plaintiff’s action 28 in denying leave to amend the complaint further. 3 Case 2:22-cv-05478-CBM-MRW Document 17 Filed 02/23/23 Page 4 of 5 Page ID #:72

1 8. Dismissal of a civil action under Rule 41 may be appropriate to 2 advance the public’s interest in the expeditious resolution of litigation, the 3 court’s need to manage its docket, and to avoid the risk of prejudice to 4 defendants. Omstead v. Dell, Inc., 594 F. 3d 1081, 1084 (9th Cir. 2010). 5 Additionally, a court should consider the public policy favoring disposition 6 of cases on their merits and the availability of less drastic alternatives in 7 its evaluation. Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 8 9. In the present action, the Court finds dismissal of the action 9 without leave to amend is appropriate. Plaintiff failed to file a proper 10 complaint against these defendants after receiving two detailed 11 explanations of the defects from the magistrate judge. Plaintiff’s refusal or 12 inability to file a plausible complaint against these parties in light of the 13 court’s warnings demonstrates that he has no interest in advancing his 14 action here. 15 10. By contrast, the Court, the defense, and the public have a 16 strong interest in terminating this action. This is particularly true given 17 that Plaintiff has not stated a legitimate cause of action (despite several 18 opportunities to do so), thereby preventing any feasible advancement of the 19 case. Furthermore, no sanction short of dismissal will be effective in 20 moving this case forward. Carey, 856 F.2d at 1440. The Court finds that 21 dismissal is appropriate under Rule 41(b). Applied Underwriters, 913 F.3d 22 at 892.

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1 11. Therefore, the present action is DISMISSED without leave to 2 | amend. 3 IT IS SO ORDERED. 5 t+ -—___ 6 | Dated: FEBRUARY 23, 2023 7 HON. CONSUELO B. MARSHALL

SENIOR U.S. DISTRICT JUDGE

Presented by: 10 11 [ _ 12

HON. MICHAEL R. WILNER

13 | UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28