1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER WHITE, Case No. 2:20-cv-01919-JAK (MAA) 12 Plaintiff, 13 ORDER OF DISMISSAL v. 14

LOS ANGELES COUNTY BOARD

15 OF SUPERVISORS et al., 16 Defendants. 17 18 19 I. SUMMARY OF FACTS AND PROCEEDINGS 20 On February 27, 2020, Plaintiff Christopher White (“Plaintiff”), proceeding 21 pro se, filed a Complaint alleging violations of his civil rights pursuant to 42 U.S.C. 22 § 1983. (Compl., ECF No. 1.) That same day, Plaintiff filed a Request to Proceed 23 In Forma Pauperis (ECF No. 3), which the Court granted on March 2, 2020 (ECF 24 No. 6). Plaintiff also filed an Application for Permission for Electronic Filing (ECF 25 No. 4), which the Court granted on March 3, 2020 (ECF No. 10). 26 On April 6, 2020, the Court issued a Memorandum Decision and Order 27 Dismissing Complaint with Leave to Amend (“Order-1”). (Order-1, ECF No. 11.) 28 The Court ordered Plaintiff, no later than sixty days from the date of Order-1—that 1 is, June 5, 2020—to either file a First Amended Complaint (“FAC”) or advise the 2 Court that Plaintiff does not intend to pursue this lawsuit further and will not file a 3 FAC. (Id. at 15–16.) Order-1 “caution[ed] Plaintiff that failure to timely file a 4 FAC, or timely advise the Court that Plaintiff does not intend to file a FAC, 5 w[ould] result in a recommendation that this action be dismissed for failure to 6 prosecute and/or failure to comply with court orders pursuant to Federal Rule 7 of Civil Procedure 41(b).” (Id. at 16.) 8 On June 15, 2020, in the absence of a filed FAC, the Court issued an Order to 9 Show Cause (“OSC-1”), ordering Plaintiff to show cause by July 15, 2020 why the 10 Court should not recommend that the case be dismissed for want of prosecution. 11 (OSC-1, ECF No. 12.) OSC-1 stated that if Plaintiff filed a FAC or dismissed the 12 case before that date, then OSC-1 would be discharged. (Id.) OSC-1 “advised that 13 failure to comply with this order w[ould] result in a recommendation that the 14 lawsuit be dismissed without prejudice for failure to prosecute and/or comply 15 with court orders. See Fed. R. Civ. P. 41(b); C.D. Cal. L.R. 41-1.” (Id.) 16 On June 22, 2020, Plaintiff filed a Motion for Extension of Time (“Motion”), 17 requesting a ninety-day extension of time to file a FAC. (Mot., ECF No. 13.) The 18 Motion asserted that Plaintiff filed lawsuits in both state and federal court, and that 19 Plaintiff had started to vindicate his rights first in state court. (Id. at 2.) The Motion 20 also stated that Plaintiff had been hospitalized, had had a hard time since the shut- 21 down of the courts due to COVID-19 and issues with PACER, was disabled, and had 22 no access to the public library. (Id.) On July 2, 2020, the Court granted the Motion 23 in part and extended Plaintiff’s FAC deadline to September 13, 2020 (“Order-2”). 24 (Order-2, ECF No. 14.) Order-2 “advised that failure to comply with this order 25 w[ould] result in a recommendation that the lawsuit be dismissed without 26 prejudice for failure to prosecute and/or comply with court orders. See Fed. R. 27 Civ. P. 41(b); C.D. Cal. L.R. 41-1.” (Id. at 2.) 28 /// 1 On September 28, 2020, in the absence of a filed FAC, the Court issued a 2 second Order to Show Cause (“OSC-2”), ordering Plaintiff to show cause by 3 October 28, 2020 why the Court should not recommend that the case be dismissed 4 for want of prosecution. (OSC-2, ECF No. 15.) OSC-2 stated that if Plaintiff filed a 5 FAC or dismissed the case before that date, then OSC-2 would be discharged. (Id. at 6 2.) OSC-2 “advised that failure to comply with this order w[ould] result in a 7 recommendation that the lawsuit be dismissed without prejudice for failure to 8 prosecute and/or comply with court orders. See Fed. R. Civ. P. 41(b); C.D. Cal. 9 L.R. 41-1.” (Id.) 10 Plaintiff has failed to file a FAC to date, and has not communicated with the 11 Court since June 22, 2020. 12 13 II. LEGAL STANDARD 14 District courts may dismiss cases sua sponte for failure to prosecute or for 15 failure to comply with a court order under Federal Rule of Civil Procedure 41(b). 16 Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005); 17 see also Link v. Wabash R.R. Co., 370 U.S. 626, 629–30 (1962) (holding that the 18 court has “inherent power” to dismiss cases sua sponte for lack of prosecution). 19 Unless the Court states otherwise, a dismissal under Rule 41(b) operates as an 20 adjudication on the merits. Fed. R. Civ. P. 41(b). “Dismissal is a harsh penalty and 21 is to be imposed only in extreme circumstances.” In re: Phenylpropanolamine 22 (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone v. 23 USPS, 833 F.2d 128, 130 (9th Cir. 1987)). 24 “A Rule 41(b) dismissal ‘must be supported by a showing of unreasonable 25 delay.’” Omstead v. Dell, 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson 26 v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). In addition, the court must weigh 27 the following factors in determining whether a Rule 41(b) dismissal is warranted: 28 “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 1 to manage its docket; (3) the risk of prejudice to the defendants/respondents; (4) the 2 availability of less drastic alternatives; and (5) the public policy favoring disposition 3 of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). 4 The Ninth Circuit will “affirm a dismissal where at least four factors support 5 dismissal, or where at least three factors strongly support dismissal.” Dreith v. Nu 6 Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011) (quoting Yourish v. Cal. Amplifier, 7 191 F.3d 983, 990 (9th Cir. 1999)). Finally, “in order to warrant a sanction of 8 dismissal, the party’s violations of the court’s orders must be due to wilfulness or 9 bad faith.” Id. 10 11 III. ANALYSIS 12 A. The Public’s Interest in Expeditious Resolution and the Court’s 13 Need to Manage Its Docket 14 The first and second factors (the public’s interest in expeditious resolution of 15 litigation and the Court’s need to manage its docket)1 strongly weigh in favor of 16 dismissal. “Orderly and expeditious resolution of disputes is of great importance to 17 the rule of law.” In re: Phenylpropanolamine, 460 F.3d at 1227. “The public’s 18 interest in expeditious resolution of litigation always favors dismissal.” Pagtalunan, 19 291 F.3d at 642 (quoting Yourish, 191 F.3d at 990). In addition, district courts “have 20 an inherent power to control their dockets,” In re: Phenylpropanolamine, 460 F.3d 21 at 1227 (quoting Thompson v. Hous. Auth. of Los Angeles, 782 F.2d 829, 831 (9th 22 Cir. 1986)), and “are best suited to determine when delay in a particular case 23 interferes with docket management and the public interest.” Yourish, 191 F.3d at 24 990 (quoting Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984)). 25 Plaintiff has failed to file a FAC—which is now over five months past due 26 from its original June 5, 2020 deadline—and has not communicated with the Court 27 1 The first two factors are usually reviewed together “to determine if there is an 28 unreasonable delay.” In re Eisen, 31 F.3d 1447, 1452 (9th Cir. 1994). 1 since June 22, 2020. The Court concludes that Plaintiff’s inaction and lack of 2 communication with the Court constitute willful unreasonable delay. See Thomas v. 3 Maricopa Cnty. Jail, 265 F. App’x. 606, 607 (9th Cir. 2008) (holding that district 4 court did not abuse its discretion by dismissing pro se prisoner lawsuit for failure to 5 respond to a court order for almost three months). Plaintiff’s noncompliance also 6 interferes with the public’s interest in the expeditious resolution of this litigation and 7 hinders the Court’s ability to manage its docket. See In re: Phenylpropanolamine, 8 460 F.3d at 1227 (“[The Ninth Circuit] defer[s] to the district court’s judgment about 9 when a delay becomes unreasonable ‘because it is in the best position to determine 10 what period of delay can be endured before its docket becomes unmanageable.”) 11 (quoting In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994)). The first and second 12 factors strongly favor dismissal. 13 14 B. Risk of Prejudice to Defendants 15 The third factor (risk of prejudice to the defendants) also weighs in favor of 16 dismissal. “A defendant suffers prejudice if the plaintiff’s actions impair the 17 defendant’s ability to go to trial or threaten to interfere with the rightful decision of 18 the case.” In re: Phenylpropanolamine, 460 F.3d at 1227 (quoting Adriana Int’l 19 Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990)). “Unnecessary delay 20 inherently increases the risk that witnesses’ memories will fade and evidence will 21 become stale.” Pagtalunan, 291 F.3d at 643. When considering prejudice, “the 22 failure to prosecute diligently is sufficient by itself to justify dismissal, even in the 23 absence of a showing of actual prejudice to the defendant from the failure. . . . The 24 law presumes injury from unreasonable delay.” In re Eisen, 31 F.3d at 1452 25 (alteration in original) (quoting Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th 26 Cir. 1976)). 27 The risk of prejudice to a defendant is related to a plaintiff’s reason for failure 28 to prosecute an action. Pagtalunan, 291 F.3d at 642. “Whether prejudice is 1 sufficient to support an order of dismissal is in part judged with reference to the 2 strength of the plaintiff’s excuse for the default.” Malone, 833 F.2d at 131. In his 3 Motion requesting an extension of the deadline to file a FAC, Plaintiff declared that 4 he filed lawsuits in both state and federal court, and that he had “started to vindicate 5 [his] rights first in state court.” (Mot. 2.) The Motion also stated that Plaintiff has 6 been hospitalized several times since filing his state and federal lawsuits, has had 7 difficulty since the shutdown of the courts due to COVID-19 and issues with 8 PACER, is disabled, and has no access to the public library. (Id.) Plaintiff has not 9 communicated with the Court since submitting the Motion on June 22, 2020. 10 The Court granted Plaintiff’s Motion and extended Plaintiff’s FAC deadline. 11 (Order-2.) However, the Court observes that the COVID-19 pandemic was taken 12 into consideration in setting Plaintiff’s original deadline to file the FAC (sixty days 13 instead of the standard thirty days). (Order-1.) Further, the Court’s temporary 14 shutdown due to the COVID-19 pandemic should not have affected Plaintiff’s ability 15 to file a FAC, as the Court approved Plaintiff’s application to file electronically and 16 Plaintiff also could have filed the FAC by mail. Finally, Plaintiff’s choice to file 17 lawsuits simultaneously in state and federal court and then to pursue his state lawsuit 18 first is not a valid excuse for failure to prosecute this case. 19 At this point—approximately five months since Plaintiff’s last communication 20 with the Court—any past excusable delay in prosecuting this action has been 21 outweighed by unreasonable delay. Plaintiff has not responded to either Order-2 or 22 OSC-2, has not communicated with the Court since June 22, 2020, has not provided 23 any explanations of what actions he has taken since that time, and has not explained 24 whether he still is experiencing any difficulties in prosecuting this case. In the 25 absence of any communication from Plaintiff for the past five months, Plaintiff’s 26 delay was unreasonable and the third factor favors dismissal. See Laurino v. Syringa 27 Gen. Hosp., 279 F.3d 750, 753 (9th Cir. 2002) (“[A] presumption of prejudice arises 28 from a plaintiff’s unexplained failure to prosecute.”). 1 C. Availability of Less Drastic Alternatives 2 The fourth factor (the availability of less drastic alternatives) strongly supports 3 dismissal. “The district court need not exhaust every sanction short of dismissal 4 before finally dismissing a case, but must explore possible and meaningful 5 alternatives.” Henderson, 779 F.2d at 1424. 6 The Court considered and implemented less drastic alternatives prior to 7 dismissal. The Court explicitly warned Plaintiff in four separate orders that failure 8 to file a FAC would result in a recommendation that the action be dismissed for 9 failure to prosecute and/or failure to comply with Court orders pursuant to Federal 10 Rule of Civil Procedure 41(b). (Order-1; OSC-1; Order-2; OSC-2.) See In re: 11 Phenylpropanolamine, 460 F.3d at 1229 (“Warning that failure to obey a court order 12 will result in dismissal can itself meet the ‘consideration of alternatives’ 13 requirement.”). The Court also extended Plaintiff’s deadline to file a FAC three 14 times: from June 5, 2020 to July 15, 2020 (OSC-1); again to September 13, 2020 15 (Order-2); and again to October 28, 2020 (OSC-2). See Ferdik v. Bonzelet, 963 F.2d 16 1258, 1262 (9th Cir. 1992) (holding that the district court’s allowance of an 17 additional thirty days for plaintiff to file an amended complaint was an attempt at a 18 less drastic sanction). The fourth factor strongly weighs in favor of dismissal. 19 20 D. Public Policy Favoring Disposition on the Merits 21 As to the fifth factor, “[p]ublic policy favors disposition of cases on the 22 merits.” Pagtalunan, 291 F.3d at 643. However, “a case that is stalled or 23 unreasonably delayed by a party’s failure to comply with deadlines . . . cannot move 24 toward resolution on the merits.” In re: Phenylpropanolamine, 460 F.3d at 1228. 25 Thus, “this factor lends little support to a party whose responsibility it is to move a 26 case towards disposition on the merits but whose conduct impedes progress in that 27 direction.” Id. (internal quotation marks omitted). The case has been stalled by 28 Plaintiff’s failure to file a FAC or otherwise communicate with the Court since June 1 || 22, 2020. Still, the public policy favoring the resolution of disputes on the merits is 2 || strong and, under the circumstances, outweighs Plaintiff's noncompliance and 3 || inaction. 4 5 E. Dismissal Without Prejudice 6 In summary, Plaintiff's failure to file a FAC or otherwise participate in this 7 || lawsuit since June 22, 2020 constitutes willful unreasonable delay. Four of the Rule 8 || 41(b) dismissal factors weigh in favor of dismissal, whereas only one factor weighs 9 || against dismissal. “While the public policy favoring disposition of cases on their 10 || merits weighs against [dismissal], that single factor is not enough to preclude 11 | imposition of this sanction when the other four factors weigh in its favor.” Rio 12 || Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1022 (9th Cir. 2002). The Court 13 || concludes that dismissal of this action for failure to prosecute and to comply with 14 || Court orders is warranted, but, consistent with Rule 41(b) and this Court’s exercise 15 || of its discretion, the dismissal is without prejudice. 16 17 | IV. CONCLUSION 18 IT THEREFORE IS ORDERED that this lawsuit is DISMISSED without 19 || prejudice. No further filings shall be accepted under this case number. 20 21 | DATED: November 16, 2020 q] ine NK 72 JOHN A. KRONSTADT

UNITED STATES DISTRICT JUDGE

23 || Presented by: 24 .

26 A A. AUDERO

UNITED STATES MAGISTRATE JUDGE

27 28