1 2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

11 LARRY CHARLES CLEVELAND, Case No. 2:17-cv-01893-DSF (GJS) 12 Plaintiff 13 MEMORANDUM AND ORDER v. DISMISSING ACTION 14 WITHOUT PREJUDICE FOR DR. CORINA NGO CHIN, et al., LACK OF PROSECUTION 15 Defendants. 16

17 18 INTRODUCTION 19 On March 9, 2017, Plaintiff Larry Cleveland filed a pro se complaint pursuant 20 to 42 U.S.C. § 1983 [Dkt. 1]. After screening, the Court ordered service of 21 Plaintiff’s First Amended Complaint to which Defendant filed an answer. [Dkts. 32, 22 57.] On April 15, 2020, Plaintiff filed a notice of change of address in a separate 23 case indicating that he is no longer in prison and requesting that all legal documents 24 be forwarded to his updated address on record. See Cleveland v. Warden, Case No. 25 2:19-cv-9730 DSF-GJS, Dkt. 10 (C.D. Cal). Accordingly, the Clerk of the Court 26 updated Plaintiff’s address in the instant case. 27 On July 14, 2020, the Court referred this case to the ADR settlement program 28 and ordered the parties to coordinate with the ADR prisoner settlement coordinator 1 2 the Court on August 27, 2020, the ADR settlement coordinator notified the Court 3 that Plaintiff has not responded to her efforts to reach him to schedule a settlement 4 conference. Specifically, Plaintiff failed to respond to letters sent to his updated 5 address on June 20, 2020 and July 16, 2020. 6 Due to the lack of response, on August 27, 2020, the Court issued an Order to 7 Show Cause why Plaintiff’s case should not dismissed for failure to prosecute 8 (“OSC”). [Dkt. 59.] Plaintiff was ordered to respond to the OSC by September 8, 9 2020. The Court cautioned Plaintiff that his failure to timely respond to the OSC 10 would result in a recommendation of dismissal of this action for lack of prosecution. 11 Plaintiff did not respond to the OSC by the September 8, 2020 deadline as 12 ordered, and Plaintiff has failed to respond to correspondence from the ADR 13 settlement coordinator. Indeed, the Court has not received any response or other 14 communication from Plaintiff since he submitted his change of address on April 15, 15 2020. 16 DISCUSSION 17 It is well established that a district court has authority to dismiss a party’s action 18 because of his or her failure to prosecute or to comply with court orders. See Fed. 19 R. Civ. P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 629-30, 82 S. Ct. 1386, 8 20 L. Ed. 2d 734 (1962) (a court’s authority to dismiss for lack of prosecution is 21 necessary to prevent undue delays in the disposition of pending cases and to avoid 22 congestion in the calendars of the district courts); Pagtalunan v. Galaza, 291 F.3d 23 639, 642 (9th Cir. 2002) (weighing factors); Ferdik v. Bonzelet, 963 F.2d 1258, 24 1260 (9th Cir. 1992) (a district court may dismiss an action for failure to comply 25 with any order of the court). 26 In Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988), the Ninth Circuit 27 affirmed the district court’s dismissal of a case for failure to prosecute. The Ninth 28 Circuit cited the following factors as relevant to the district court’s determination of 1 2 “‘(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 3 to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 4 policy favoring disposition of cases on their merits and (5) the availability of less 5 drastic sanctions.’” Id. at 1440 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 6 (9th Cir. 1986)). 7 In this case, Plaintiff has failed to communicate with the Court as directed and 8 failed to respond to the Court’s August 27, 2020 OSC. Plaintiff’s failure to follow 9 the Court’s orders and to prosecute his case has caused this action to languish, 10 impermissibly allowing plaintiff to control the pace of the docket rather than the 11 Court. See Pagtalunan, 291 F.3d at 642 (“It is incumbent upon the Court to manage 12 its docket without being subject to routine noncompliance of litigants.”). Plaintiff’s 13 conduct indicates that he does not intend to litigate this action diligently, or at all. 14 Thus, the first and second factors weigh in favor of dismissal. See Yourish v. 15 California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (“[T]he public’s interest in 16 expeditious resolution of litigation always favors dismissal.”). 17 A rebuttable presumption of prejudice to an opposing party arises when a 18 party unreasonably delays prosecution of an action. See In re Eisen, 31 F.3d 1447, 19 1452-53 (9th Cir. 1994). Nothing suggests that such a presumption is unwarranted 20 here. Where a party offers a poor excuse for failing to comply with a court’s order, 21 the prejudice to the opposing parties is sufficient to favor dismissal. See Yourish, 22 191 F.3d at 991-92. Here, Plaintiff has not offered any excuse for his failure to 23 comply with the Court’s orders. Further, “[u]nnecessary delay inherently increases 24 the risk that witnesses’ memories will fade and evidence will become stale.” 25 Pagtalunan, 291 F.3d at 643 (citing Sibron v. New York, 392 U.S. 40, 57, 88 S. Ct. 26 1889, 20 L. Ed. 2d 917 (1968)). Thus, the third factor also weighs in favor of 27 dismissal. 28 1 2 reasonable pace and to avoid dilatory and evasive tactics. See Morris v. Morgan 3 Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991). By failing to respond to requests 4 from the Court’s ADR settlement coordinator, and by failing to respond to the 5 Court’s August 27, 2020 OSC, Plaintiff has not discharged this responsibility. In 6 these circumstances, the public policy favoring resolution of disputes on the merits 7 does not outweigh Plaintiff’s failure to comply with Court orders or move the case 8 forward. 9 The fifth factor, the availability of less drastic sanctions, ordinarily counsels 10 against dismissal. “Alternative sanctions include: a warning, a formal reprimand, 11 placing the case at the bottom of the calendar, a fine, the imposition of costs or 12 attorney fees, the temporary suspension of the culpable counsel from practice before 13 the court, . . . dismissal of the suit unless new counsel is secured [,] . . . preclusion of 14 claims or defenses, or the imposition of fees and costs upon plaintiff’s counsel. . . .” 15 Malone v. U.S. Postal Serv., 833 F.2d 128, 132 n.1 (9th Cir. 1987) (citation and 16 internal quotation omitted). In the instant case, however, each of these possibilities 17 is either inappropriate for a pro se litigant proceeding in forma pauperis under the 18 PLRA or has already been employed with no apparent effect. 19 The Court attempted to avoid dismissal by: (1) issuing an OSC in which the 20 Court warned Plaintiff that failure to timely respond to the OSC would result in a 21 recommendation of dismissal of this action without prejudice; and (2) waiting three 22 weeks beyond the deadline to respond to the OSC before issuing this order. As 23 there appears to be no less drastic sanction than dismissal without prejudice now 24 available, the fifth factor weighs in favor of dismissal. Based on the foregoing, 25 dismissal of this action without prejudice is warranted for failure to prosecute and to 26 obey court orders. 27 /// 28 /// 1 CONCLUSION 2 IT IS THEREFORE ORDERED that Judgment shall be entered dismissing this 3 |} action without prejudice. 4 5 IT IS SO ORDERED. 6 || DATED: September 30, 2020 / ) 7 Honorable Dale Fischer —

UNITED STATES DISTRICT JUDGE

9 Presented by: 10 11 | { )J A | 12 || GAIL J. STANDISH 13 || UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28