1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 CHARLES N. BELSSNER, ) CASE NO. ED CV 20-631-FMO (PJW) ) 11 Plaintiff, ) ORDER DISMISSING ACTION FOR ) FAILURE TO PROSECUTE 12 v. ) ) 13 CIRCLE DENTAL, ET AL., ) ) 14 ) Defendants. ) 15 ) 16 In March 2020, Plaintiff Charles N. Belssner filed this pro se 17 civil rights action against Circle Dental, the California Commission 18 on Judicial Performance, the State of California, and Superior Court 19 Judge Randall D. White. (Complaint at 1, 6-7.) Though the Complaint 20 was difficult to decipher, it appeared that he was alleging that 21 Circle Dental charged him too much for dental work, that Judge White 22 had abused his discretion during Plaintiff’s trial against Circle 23 Dental, that the Commission on Judicial Performance had “disregarded 24 the plight of the disable[d] to seek equity,” and that the State of 25 California had failed to provide oversight over certain business, like 26 Circle Dental, forcing Plaintiff to litigate against those that 27 violated the law. (Complaint at 6-8.) Plaintiff sought declaratory 28 1 and injunctive relief as well as any other relief the Court deemed 2 appropriate. 3 The Court denied Plaintiff’s request for injunctive relief. 4 Furthermore, the Court determined after screening the Complaint that 5 Plaintiff had not stated, and likely could not state, any cognizable 6 federal claims. Nevertheless, the Court explained why his claims were 7 not viable and gave Plaintiff until April 30, 2020 to file a First 8 Amended Complaint. Plaintiff failed to file a First Amended Complaint 9 by April 30 and failed to request additional time to do so. As such, 10 the Court is now dismissing the action for failure to prosecute. In 11 doing so, the Court sets out once again why Plaintiff’s claims are not 12 cognizable in federal court. 13 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege 14 that a right secured by the Constitution or laws of the United States 15 was violated and the violation was committed by an individual acting 16 under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). As 17 to the State of California and the State Commission on Judicial 18 Performance, Plaintiff cannot state a claim against them under § 1983 19 because they are entitled to immunity under the Eleventh Amendment to 20 the U.S. Constitution, which, in general, bars suits against the 21 states. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 66, 22 71 (1989) (holding states are not persons within the meaning of § 1983 23 and, thus, that statute “does not provide a federal forum for 24 litigants who seek a remedy against a State for alleged deprivations 25 of civil liberties.”). Further, Plaintiff cannot sue Circle Dental 26 under § 1983 because it is a private party, not a state actor, and 27 does not act under color of law. See Price v. Hawaii, 939 F.2d 702, 28 2 1 707-08 (9th Cir. 1991) (“[P]rivate parties are not generally acting 2 under color of state law[.]”). As to Superior Court Judge White, this 3 Court has no authority to remove him from office, to counsel him on 4 how to address litigants in his courtroom, or to overrule his 5 decisions in the context of this § 1983 action. See, e.g., District 6 Court of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 7 (1983) (“[A] United States District Court has no authority to review 8 final judgments of a state court in judicial proceedings”); Noel v. 9 Hall, 341 F.3d 1148, 1155 (9th Cir. 2003) (explaining “party 10 disappointed by a decision of the highest state court . . . may [not] 11 appeal to a federal district court, even if a federal question is 12 present or if there is diversity of citizenship between the 13 parties.”). Further, Judge White is entitled to immunity from suit 14 for actions taken by him while judging Plaintiff’s case. See Mireles 15 v. Waco, 502 U.S. 9, 11 (1991) (explaining judicial immunity is 16 immunity from suit, not just from the ultimate assessment of damages). 17 This is true even if his actions were done maliciously or in excess of 18 his judicial authority. See Stump v. Sparkman, 435 U.S. 349, 356 19 (1978). Thus, there is clearly no merit to Plaintiff’s suit. But, 20 even if there was, his failure to prosecute it is grounds for 21 dismissing it. 22 It is well established that a district court has the authority to 23 dismiss an action for failure to prosecute and/or for failure to 24 comply with court orders. Fed. R. Civ. P 41(b); Link v. Wabash 25 Railroad Co., 370 U.S. 626, 629-30 (1962) (explaining district court 26 has authority to dismiss case for lack of prosecution in order to 27 prevent undue delays in disposition of pending cases and to avoid 28 congestion in court’s calendar); Ferdik v. Bonzelet, 963 F.2d 1258, 1 1260-61 (9th Cir. 1992) (finding district courts have authority to 2 dismiss for failure to comply with court order). The Court considers 3 five factors when evaluating whether dismissal is appropriate: (1) the 4 public interest in expeditious resolution of litigation; (2) the 5 Court’s need to manage its docket; (3) the risk of prejudice to 6 defendants; (4) the public policy favoring disposition of cases on 7 their merits; and (5) the availability of less drastic sanctions. 8 Ferdik, 963 F.2d at 1260-61. 9 In this case, both the public’s interest in the expeditious 10 resolution of cases and the Court’s need to manage its docket weigh in 11 favor of dismissal. It appears that Plaintiff is not interested in 12 pursuing this action as evidenced by the fact that he has not filed a 13 First Amended Complaint. As a result, the case is at a standstill. 14 As to the third factor, prejudice to Defendants, this, too, 15 weighs in favor of dismissal. It is clear that Defendants are not 16 amenable to suit and even having to deal with being served with the 17 Complaint and marshaling resources to address it would be a 18 unnecessary burden to them. 19 The fourth factor–-the general policy favoring resolution of 20 cases on the merits–-also weighs in favor of dismissal as there is no 21 merit to Plaintiff’s claims. 22 Finally, the fifth factor–-the availability of less drastic 23 alternatives–-also weighs in favor of dismissal. The Court is unable 24 to impose a lesser sanction, e.g., monetary sanctions, because 25 Plaintiff is proceeding in forma pauperis (and presumably does not 26 have the money to pay sanctions) and because his refusal to comply 27 with the order to file an amended complaint suggests that he is not 28 concerned with the Court’s orders. 1 Considering all five factors, the Court concludes that dismissal for failure to prosecute is warranted. See Ferdik, 963 F.2d at 1263 3 || (concluding dismissal appropriate where supported by three factors); Pagtalunan, 291 F.3d at 643 (same). The case is hereby dismissed 5 || without prejudice. 6 IT IS SO ORDERED. 7 8 DATED: May 21, 2020 9 10 Sf

FERNANDO M. OLGUIN

11 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 Presented by: 23 24 Jeeued Q. L4G 25 || PATRICK J. WALSH

UNITED STATES MAGISTRATE JUDGE

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