1 2 3 JS-6 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE CENTRAL DISTRICT OF CALIFORNIA 11 12 Case No. CV 23-780- ODW (MRW) 13 KELLEN CLARKE,

ORDER DISMISSING ACTION

14 Plaintiff,

WITH PREJUDICE

15 v. 16 IAN PARKINSON, Sheriff, et al., 17 Defendants. 18 19 The Court dismisses the action with prejudice for failure to 20 prosecute and for failure to respond to court orders. 21 * * * 22 1. This is a pro se civil rights action. Plaintiff attempts to allege a 23 variety of claims against San Luis Obispo County (a) probation office 24 personnel regarding his most recent criminal case and (b) jail and medical 25 staff regarding his most recent incarceration.1 (Complaint.) 26 1 Plaintiff previously tried to sue various county officials for civil 27 rights violations related to earlier periods in custody. CV 20-9708, CV 20-8205, 20-2725, 19-5112, 18-6452 ODW (MRW) (C.D. Cal.). None of these actions led 28 1 2. Because Plaintiff paid the filing fee in full, Magistrate Judge 2 Wilner reviewed Plaintiff’s complaint pursuant to 28 U.S.C. § 1915(e)(2). 3 (Docket # 7.) The magistrate judge dismissed the original complaint with 4 leave to amend for a variety of substantive and procedural reasons; 5 namely, the complaint failed to allege a comprehensible, non-conclusory 6 constitutional claim, and failed to assert a basis for federal court 7 intervention with Plaintiff’s criminal case. 8 3. Plaintiff filed a First Amended Complaint. (Docket # 12.) 9 Judge Wilner concluded that the amended pleading was defective because 10 it pled “fewer facts to explain the basis for Plaintiff’s causes of action. It 11 also continues to advance unintelligible claims” against the named local 12 officials. (Docket # 13.) The First Amended Complaint was dismissed with 13 leave to amend. 14 4. Plaintiff’s Second Amended Complaint (Docket # 17) fared no 15 better. That version of the complaint abandoned Plaintiff’s claims against 16 the local probation office and the challenge to his most recent criminal 17 case. Rather, the Second Amended Complaint attempted to focus on his 18 claims of inadequate health care while in custody. 19 5. However, in screening the complaint, the magistrate judge 20 concluded that Plaintiff’s conclusory allegations that jail physicians “denied 21 ‘all requests’ for medical treatment” were belied by statements, 22 attachments, and other medical records that Plaintiff submitted with the 23 complaint regarding his considerable medical treatment. (Docket # 18 at 2- 24 3.) Further, the amended complaint “fail[ed] to allege any facts sufficient 25 to establish the knowledge of the practitioners or plausibly accuse the 26 27 to relief. All were dismissed at the pleading stage or when Plaintiff failed to 28 respond to a defense motion. 1 physicians of the requisite misconduct” to the level required under Section 2 1983 and Ninth Circuit case law. (Id.) 3 6. The order dismissing the Second Amended Complaint gave 4 Plaintiff the opportunity to further amend his claims by August 31, 2023, 5 to state a plausible cause of action. The magistrate judge expressly 6 informed Plaintiff that failure to do so would lead to dismissal of the action 7 under Federal Rule of Civil Procedure 41 and Applied Underwriters, Inc. v. 8 Lichtenegger, 913 F.3d 884, 892 (9th Cir. 2019). 9 7. To date, Plaintiff has not filed a new iteration of his complaint. 10 * * * 11 8. Rule 41(b) provides that if a plaintiff “fails to prosecute or to 12 comply with these rules or a court order, a defendant may move to dismiss 13 the action or any claim against it.” Dismissal also may be ordered by the 14 Court sua sponte. Link v. Wabash R.R., 370 U.S. 626, 629-30 (1962). 15 9. Rule 41(b) further authorizes a court to dismiss a civil action 16 when a plaintiff has not filed a required pleading “after being given leave 17 to do so and has not notified the court of his intention not to file” that 18 document. Harris v. Magnum, 863 F.3d 1133, 1142 (9th Cir. 2017). Rule 19 41(b) applies when a court “mandate[s] the filing” of a pleading and 20 “indicate[s] that failure to do so would result in dismissal” under the rule. 21 Applied Underwriters, 913 F.3d at 892. 22 10. A district court must consider a variety of factors before 23 dismissing an action under Rule 41(b). They are: the public’s interest in 24 the expeditious resolution of litigation; the court’s need to manage its 25 docket; the risk of prejudice to defendants; the public policy favoring 26 disposition of cases on their merits; and the availability of less drastic 27 28 1 | alternatives to dismissal. Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th 2 | Cir. 2010); Yourish v. Cal. Amplifier, 191 F.3d 983, 986 (9th Cir. 1999). 3 kokk 4 11. Inthe present action, dismissal is appropriate. Despite 5 | receiving considerable guidance from the magistrate judge regarding 6 | defects with his first three complaints, Plaintiff failed to file a new version 7 | that plausibly stated a cause of action. Plaintiff's failure to respond to the 8 | Court’s order demonstrates that he has no interest in advancing his most 9 | recent case. That parallels the outcome of Plaintiffs previous half-dozen 10 | actions in this district. 11 12. contrast, the Court, the defense, and the public have a 12 | strong interest in terminating this action. Furthermore, because Plaintiff 13 | is a pro se litigant who has not abided by the Court’s recent order, no 14 | sanction short of dismissal will be effective in moving this case forward. 15 | Omstead, 594 F.3d at 1084. The Court finds that dismissal is appropriate 16 | under Rule 41(b). Applied Underwriters, 913 F.3d at 892. 17 18 Therefore, the present action is hereby DISMISSED with prejudice. 19 IT IS SO ORDERED. nN 20 cage 21 | Dated: September 15, 2023 99 HON. OTIS D. WRIGHT II

UNITED STATES DISTRICT JUDGE

Presented by: 25 LU [ | | 26 27 | HON. MICHAEL R. WILNER 28 UNITED STATES MAGISTRATE JUDGE