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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 BROQUE ANTHONY ANDERSON, Case No. 5:22-cv-01586-JAK-KES

12 Plaintiff,

ORDER DISMISSING ACTION

13 v.

WITHOUT PREJUDICE FOR LACK

14 SAN BERNARDINO SHERIFFS OF PROSECUTION

15 DEPARTMENT, et al.,

16 Defendants.

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19 I.

20 BACKGROUND 21 In September 2022, the Court received from Plaintiff Broque Anthony 22 Anderson (“Plaintiff”) a 42 U.S.C. § 1983 Complaint against San Bernardino 23 County (“SBC”) and four SBC Sheriff Deputies. (Dkt. 1.) After screening under 24 the Prison Litigation Reform Act at 28 U.S.C. §§ 1915(e)(2), 1915A, Plaintiff filed 25 a First Amended Complaint (“FAC”). (Dkt. 30.) After additional screening, the 26 sole remaining claim in the FAC is Plaintiff’s 42 U.S.C. § 1983/Fourteenth 27 Amendment claim against Defendant SBC for allegedly confining him at the West 28 1 Valley Detention Center (“WVDC”) without food and water for ninety-six hours. 2 (Dkt. 38 (order accepting Report & Recommendation).) 3 In September 2023, the Court ordered service of the FAC on Defendant 4 SBC. (Dkt. 41.) After receiving the FAC, Defendant’s attorney contacted Plaintiff 5 to “meet and confer” over a contemplated motion to dismiss. (Dkt. 42 at 3.) 6 Plaintiff agreed to file a Second Amended Complaint (“SAC”) and emailed a copy 7 to defense counsel. The Court authorized the filing of the SAC (Dkt. 46) and it 8 was docketed on October 31, 2023. (Dkt. 47.) 9 Meanwhile, on October 26, 2023, Defendant SBC moved to dismiss the 10 SAC. (Dkt. 43.) The Court ordered Plaintiff to file an opposition by November 11 17, 2023, further instructing him as follows: 12 Plaintiff should consider whether he wishes to oppose the motion or 13 voluntarily dismiss his lawsuit. If Plaintiff agrees that he was not 14 held at WVDC without food and water for 96 hours, then he should 15 voluntarily dismiss the lawsuit. Defendant has provided evidence 16 that Plaintiff was not held for 96 hours without food or water. 17 Defendant contends that (1) Plaintiff was held for about 15.5 hours 18 (2) in a holding cell with a drinking fountain and (3) he received 19 meals during mealtime, per SBC policy. The Court is aware that 20 Plaintiff was arrested several times by SBC Sheriff Deputies during 21 the same time period, such that he may not have clearly remembered 22 the circumstances of this particular arrest on March 17, 2021, when 23 he drafted the SAC. Plaintiff may wish to speak to his mother or 24 other family members involved to see if their recollection differs 25 from his own. 26 (Dkt. 46 at 2.) 27 The Court warned, “If Plaintiff fails to timely respond to this Order or 28 request an extension based on ‘good cause,’ the Court may dismiss the case for 1 lack of prosecution.” (Id.) 2 After this deadline passed without Plaintiff filing anything, the Court sua 3 sponte extended Plaintiff’s deadline to December 18, 2023. The Court again 4 warned Plaintiff of the potential for a summarily dismissal, as follows: 5 The Court will give Plaintiff one more opportunity to respond to 6 Defendant’s motion before dismissing the case for failure to 7 prosecute. … As set forth in the October 31, 2023 minute order, 8 Plaintiff should either (1) voluntarily dismiss this action or (2) oppose 9 Defendant’s motion based on his own declaration, but only if he can 10 honestly do so. 11 (Dkt. 48 at 2.) 12 As of the date of this order, the Court has not received any further filings 13 from Plaintiff. Consistent with the warnings given, the Court now dismisses this 14 case without prejudice for failure to prosecute. 15 II. 16 LEGAL STANDARD 17 A district court may dismiss an action for failure to prosecute, failure to 18 follow court orders, or failure to comply with the federal or local rules. See Fed. 19 R. Civ. P. 41(b); Link v. Wabash R. Co., 370 U.S. 626, 629-30 (1962); Ghazali v. 20 Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). Central District of California 21 Local Rule 41-1 provides, “Civil suits which have been pending for an 22 unreasonable period of time without any action having been taken therein may, 23 after notice, be dismissed for want of prosecution.”1 24 The Court has discretion to dismiss the action with or without prejudice. 25

26 1 The Local Rules of the U.S. District Court for the Central District of 27 California are available online at: https://www.cacd.uscourts.gov/court- procedures/local-rules. 28 1 See Fed. R. Civ. P. 41(b) (“[u]nless the dismissal order states otherwise,” or certain 2 exceptions apply, a dismissal pursuant to Federal Rule of Civil Procedure 41(b) 3 “operates as an adjudication on the merits”); Local Rule 41-2 (“[u]nless the Court 4 provides otherwise, any dismissal pursuant to [Local Rule] 41-1 shall be without 5 prejudice”); Al-Torki v. Kaempen, 78 F.3d 1381, 1385 (9th Cir. 1996) (“Dismissal 6 with prejudice and default on counterclaims, for willful and inexcusable failure to 7 prosecute, are proper exercises of discretion under Federal Rules of Civil 8 Procedure 41(b), 16(f), and the inherent power of the court.”). 9 In determining whether to dismiss a case for failure to prosecute or failure to 10 comply with court orders, the Ninth Circuit has instructed district courts to 11 consider the following five factors: (1) the public’s interest in expeditious 12 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 13 prejudice to the defendants; (4) the availability of less drastic sanctions; and (5) the 14 public policy favoring disposition of cases on their merits. In re 15 Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 16 2006). The test is not “mechanical,” but provides a “non-exhaustive list of things” 17 to “think about.” Valley Eng’rs v. Elec. Eng’g Co., 158 F.3d 1051, 1057 (9th Cir. 18 1998). 19 III. 20 DISCUSSION 21 Here, the first two factors favor dismissal. The first factor—the public’s 22 interest in the expeditious resolution of litigation—“always favors dismissal.” 23 Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). The second factor— 24 the Court’s need to manage its docket—favors dismissal here because Plaintiff’s 25 “noncompliance has caused [this] action to come to a complete halt, thereby 26 allowing [him] to control the pace of the docket rather than the Court.” Id. 27 (internal quotations marks omitted). 28 The third factor—prejudice to Defendants—weighs in favor of dismissal, 1 although perhaps not as strongly as some of the other factors. A rebuttable 2 presumption of prejudice to the defendants arises when a plaintiff unreasonably 3 delays prosecution of an action, In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994), 4 and unnecessary delay “inherently increases the risk that witnesses’ memories will 5 fade and evidence will become stale.” Pagtalunan, 291 F.3d at 643. 6 The fourth factor—availability of less drastic sanctions—favors dismissal. 7 The Court’s prior orders warned Plaintiff that failure to respond might result in a 8 dismissal of this action. (Dkt. 48.) See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 9 (9th Cir. 1992) (“a district court’s warning to a party that his failure to obey the 10 court’s order will result in dismissal can satisfy the ‘consideration of alternatives’ 11 requirement”) (citation omitted). 12 The fifth factor—public policy favoring a disposition of an action on its 13 merits—arguably weighs against dismissal here. Pagtalunan v. Galaza, 291 F.3d 14 639, 643 (9th Cir. 2002). But the evidence San Bernardino County filed, refuting 15 Plaintiff’s sole remaining claim, mitigates concerns over the lack of an 16 adjudication on the merits. 17 Given that the enumerated factors largely support dismissal, this action will 18 be dismissed pursuant to Rule 41(b) and Local Rule 41-1. Considering all of the 19 circumstances, and in particular given that Plaintiff is proceeding pro se, the 20 dismissal shall be without prejudice. 21 22 23 24 25 26 27 28 1 IV. 2 CONCLUSION 3 IT IS THEREFORE ORDERED that Judgment will be entered dismissing 4 | this action without prejudice for failure to prosecute. Om VE 6 | DATED: January 03, 2024 7 JOHN A. KRONSTADT

UNITED STATES DISTRICT JUDGE

9 | Presented by: |) Tous €, Sestts 11 | KAREN E. SCOTT 12 | UNIFED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28