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6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 FREDERICK WAYNE SMITH, Case No. 2:18-06513 AB (ADS) 12 Plaintiff, 13 v. ORDER DISMISSING ACTION FOR

FAILURE TO PROSECUTE AND

14 KERNAN, et al., COMPLY WITH COURT ORDERS Defendants. 15 16 17 I. INTRODUCTION 18 Plaintiff Frederick Wayne Smith, a current prisoner at Kern Valley State Prison, 19 proceeding pro se, filed a Complaint under 42 U.S.C. § 1983. [Dkt. No. 1]. After 20 multiple rounds of screening, Plaintiff failed to file a complaint that stated any claim 21 upon which relief could be granted, failing to comply with Federal Rule of Civil 22 Procedure 8 (“Rule 8”) to file a short, plain statement of a claim for relief. [Dkt. Nos. 22, 23 26, 36]. Now, despite repeated opportunities and warnings, Plaintiff has failed to 24 prosecute this case, and as such, it must be dismissed. 1 II. RELEVANT PROCEDURAL HISTORY 2 On April 14, 2020 the Court dismissed Plaintiff’s Second Amended Complaint 3 with leave to amend and granted leave to file a Third Amended Complaint by no later 4 than May 14, 2020. [Dkt. No. 36]. Plaintiff was expressly warned that given his 5 multiple failures to state any claim that complies with Rule 8, the Third Amended

6 Complaint would be his final opportunity to file an amended complaint. [Id. at p. 8]. 7 Plaintiff did not file a Third Amended Complaint, and instead filed objections to 8 the April 14, 2020 Order. In the Objections Plaintiff asserted that he could not “give the 9 facts the way, 4-14-20, is requesting” without unspecified “legal property.” [Dkt. No. 10 37]. On May 22, 2020, the Court issued an Order to Show Cause Why Legal Property is 11 Needed to File an Amended Complaint, directing Plaintiff to file a written response 12 identifying which documents he needed from his “legal property” to file an amended 13 complaint and how he believed each of those documents would assist him in preparing 14 an amended complaint. [Dkt. No. 38]. In response, Plaintiff asserted he has “hidden 15 documents” in his legal property that “shows illegal acts by officers and staff” which 16 include “declarations by inmates and Staff that will attest to fact of plaintiff being

17 jumped” and “documents that show collusion by Delano staff.” [Dkt. No. 39, pp. 1-2]. 18 Plaintiff referred to these documents as “evidence” that will support his claims. [Id.]. 19 On June 19, 2020 the Court issued an Order Regarding Last Chance to File Third 20 Amended Complaint. In the order the Court explained that Plaintiff’s previous 21 complaints were dismissed for a failure to comply with Rule 8’s short, plain statement 22 requirement, and nothing in Plaintiff’s Response indicated how his unspecified “legal 23 property” would be necessary or helpful in filing an amended complaint that complies 24 with Rule 8. [Dkt. No. 40]. Accordingly, the Court granted Plaintiff one final 1 opportunity to comply with the April 14, 2020 Order. [Id.]. Plaintiff was instructed to 2 file either a Third Amended Complaint, a statement of intent to proceed on the Second 3 Amended Complaint despite its deficiencies, or a notice of voluntary dismissal by no 4 later than July 20, 2020. [Id.]. 5 Despite warnings that that case will be dismissed, Plaintiff has not filed an

6 appropriate response to the April 14, 2020 Order Dismissing with Leave to Amend, or 7 June 19, 2020 Order Regarding Last Chance to File Third Amended Complaint. 8 III. DISCUSSION 9 Dismissal of this action is warranted due to Plaintiff’s failure to prosecute the 10 case and comply with court orders. The Court has the inherent power to achieve the 11 orderly and expeditious disposition of cases by dismissing actions pursuant to Fed. R. 12 Civ. P. 41(b) for failure to prosecute and failure to comply with a court order. See Link v. 13 Wabash R.R. Co., 370 U.S. 626, 629-30 (1962); see also Pagtalunan v. Galaza, 291 14 F.3d 639, 640 (9th Cir. 2002). The Court weighs the following factors when 15 determining whether to dismiss an action for failure to comply with a court order or 16 failure to prosecute: (1) the public’s interest in the expeditious resolution of litigation;

17 (2) the Court’s need to manage its docket; (3) the risk of prejudice to the defendant; 18 (4) the public policy favoring disposition of cases on their merits; and (5) the availability 19 of less drastic sanctions. Pagtalunan, 291 F.3d at 642. 20 Here, the first, second, third, and fifth factors weigh in favor of dismissal. First, 21 Plaintiff has failed to respond to the Court’s April 14, 2020 Order Dismissing with Leave 22 to Amend or to the June 19, 2020 Order Regarding Last Chance to File Amended 23 Complaint. This failure to prosecute the case has interfered with the public’s interest in 24 the expeditious resolution of this litigation and the Court’s need to manage its docket. 1 See Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (“[T]he public’s 2 interest in expeditious resolution of litigation always favors dismissal.”). Second, 3 Plaintiff has failed to rebut the presumption that defendants have been prejudiced by 4 this unreasonable delay. In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994) (“[T]he law 5 presumes injury from unreasonable delay.”) (quoting Anderson v. Air West, Inc., 542

6 F.2d 522, 524 (9th Cir. 1976)). Third, there is no less drastic sanction available as the 7 Court has warned Plaintiff multiple times that the case would be dismissed. 8 Accordingly, the Court has taken meaningful steps to explore alternatives to dismissal. 9 See Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (“[T]he district court 10 need not exhaust every sanction short of dismissal before finally dismissing a case, but 11 must explore possible and meaningful alternatives.”). Finally, although the fourth factor 12 always weighs against dismissal, here Plaintiff’s failure to discharge his responsibility to 13 move the case towards a disposition outweighs the public policy favoring disposition on 14 the merits. Morris v. Morgan Stanley Co., 942 F.2d 648, 652 (9th Cir. 1991) 15 (“[A]lthough there is indeed a policy favoring disposition on the merits, it is the 16 responsibility of the moving party to move towards that disposition at a reasonable pace,

17 and to refrain from dilatory and evasive tactics.”). Moreover, Plaintiff has failed to 18 submit a complaint that reflects any claim upon which relief may be granted. Having 19 weighed these factors, the Court finds that dismissal of this action pursuant to Federal 20 Rule of Civil Procedure 41(b) is warranted. 21 /// 22 /// 23 /// 24 /// 1 ||IV. CONCLUSION 2 Accordingly, this action is dismissed for failure to prosecute and comply with 3 || court orders pursuant to Federal Rule of Civil Procedure 41(b). Judgment is to be 4 entered accordingly. 5 6 IT IS SO ORDERED. 7 g || Dated: September 16, 2020 (yh -— 0 HONORABLE ANDREBIROTIE, JR. United States District Judge 11 12 || Presented by: ‘8 /s/ Autumn D. Spaeth __ 14 || THE HONORABLE AUTUMN D. SPAETH United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24