1 2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

11 THOMAS DAVID SIDES, Case No. 2:20-cv-04285-DMG (GJS) 12 Plaintiff,

13 v. ORDER DISMISSING ACTION

WITHOUT PREJUDICE

14 FELICIA PINCE, et al.,

15 Defendants.

16 17 On May 12, 2020, Plaintiff filed a civil rights complaint [Doc. # 1, 18 “Complaint”]. Pursuant to the Court’s screening obligations under 28 U.S.C. § 19 1915A and 42 U.S.C. § 1997e(c)(1), the Court screened the Complaint and, on May 20 14, 2020, denied Plaintiff leave to proceed without prepayment of the filing fee and 21 granted him leave to amend. [Doc. # 7, “May 14 Order.”] The May 14 Order 22 warned Plaintiff that the failure to rectify the deficiencies of his Complaint – as they 23 had been identified and discussed at length in the May 14 Order – could result in the 24 dismissal of the case pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. 25 Plaintiff then filed a First Amended Complaint. [Doc. # 10.] On June 15, 26 2020, the Court screened the First Amended Complaint and again denied Plaintiff 27 leave to proceed without prepayment of the filing fee and granted him leave to 28 amend. [Doc. # 11, “June 15 Order.”] The June 15 Order noted Plaintiff’s 1 2 Amended Complaint, like its predecessor, was fundamentally defective, and then 3 explained why in detail. The June 15 Order discussed how Plaintiff had failed to 4 correct the deficiencies of his prior Complaint, despite the advice provided as to 5 these defects, and rejected Plaintiff’s assertion that he is not required to exhaust his 6 administrative remedies before proceeding with a Bivens action. While dubious that 7 Plaintiff would be able to rectify his pleading’s deficiencies, the Court granted him 8 one final chance to attempt to state a viable claim. The June 15 Order again warned 9 Plaintiff that his failure to rectify the deficiencies discussed in the Order would 10 result in the case being dismissed under Rule 41(b). 11 The Second Amended Complaint was required to be filed by July 15, 2020. 12 This did not happen. On July 2, 2020, Plaintiff submitted a stack of documents 13 which consisted of a case caption and various loose documents, including a letter 14 sent to other federal agencies, a letter sent to the Warden of his institution with a 15 response, and various medical and disciplinary prison records. On July 8, 2020, 16 United States Magistrate Judge Gail J. Standish rejected and returned the stack of 17 documents, advising Plaintiff that he must comply with the June 15 Order and 18 submit a single Second Amended Complaint, as well as sign any pleading he 19 submits. [Doc. # 12.] On July 13, 2020, the Court received from Plaintiff a jumbled 20 stack of documents along with a cover letter stating that the loose documents were 21 sent in response to the June 15 Order and were intended to serve as Plaintiff’s 22 Second Amended Complaint. On July 24, 2020, Magistrate Judge Standish rejected 23 and returned the documents to Plaintiff, advising him that: they did not constitute a 24 pleading, as there was no caption and no factual or legal allegations or claims for 25 relief were pleaded; and the stack of documents did not respond to the concerns and 26 issues identified in the June 15 Order. Judge Standish extended Plaintiff’s deadline 27 to file a Second Amended Complaint to August 28, 2020, sent him a packet of 28 information relating to pro se filings and a form complaint and an in forma pauperis 1 2 with filing his Second Amended Complaint by the extended deadline. She 3 cautioned Plaintiff that this was a final extension of time and that if he did not 4 comply with her Order and the June 15 Order by the August 28, 2020 deadline, it 5 would likely result in the dismissal of the case under Rule 41(b). 6 August 28, 2020 came and went with no response by Plaintiff. Rather than 7 comply with any of the foregoing Orders, Plaintiff instead submitted various 8 jumbled documents in early October, which even when read together, could not be 9 said to constitute a Second Amended Complaint. On October 8, 2020, Judge 10 Standish rejected and returned them through an Order that explained why these 11 rambling documents did not constitute a viable pleading. [Doc. # 17, “October 8 12 Order.”] The October 8 Order extended Plaintiff’s deadline to file a Second 13 Amended Complaint to November 20, 2020, and cautioned him that the failure to 14 submit a Second Amended Complaint that complied with the foregoing Orders by 15 no later than November 20, 2020, would result in dismissal pursuant to Rule 41(b). 16 The twice extended deadline for Plaintiff’s Second Amended Complaint has 17 passed, and no such pleading has been filed. Given the above-recounted 18 circumstances and the repeated warnings given to Plaintiff about dismissal if he did 19 not act in compliance with the Court’s Orders, including by filing a Second 20 Amended Complaint, the Court must assume that he no longer wishes to pursue this 21 case.1 22 Rule 41(b) of the Federal Rules of Civil Procedure grants federal district 23 courts the authority to sua sponte dismiss actions for failure to prosecute. Link v. 24 Wabash R. Co., 370 U.S. 626, 629-30 (1962). In determining whether dismissal for 25 lack of prosecution is proper, a court must weigh several factors, including: (1) the 26

27 1 It appears that Plaintiff has abandoned this case in favor of two recently-filed lawsuits – 28 Case Nos. CV 20-10504-DMG (GJS) and CV 20-10505-DMG (GJS) – which are brought against some of the same defendants and raise some of the same issues involved in this case. 1 2 manage its docket; (3) the risk of prejudice to defendants; (4) the availability of less 3 drastic sanctions; and (5) the public policy favoring the disposition of cases on their 4 merits. In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 5 (9th Cir. 2006). 6 In this case, the fifth factor, the general policy favoring resolution of cases on 7 the merits, cannot be said to favor retention of this action on the Court’s docket. As 8 explained in both the May 14 Order and the June 15 Order, Plaintiff’s attempted 9 Bivens complaints have been riddled with fundamental and fatal errors, and it 10 appears to the Court that he is unable to state a viable claim. Moreover, it appears 11 highly likely that Plaintiff has not exhausted his available administrative remedies, 12 given his assertion that he does not need to do so. 13 Plaintiff’s noncompliance with the June 15 Order and Magistrate Judge 14 Standish’s July 24, 2020 and October 8 Orders necessarily implicates both the 15 public interest in the expeditious resolution of litigation and the Court’s need to 16 manage its docket efficiently, the first and second factors. See In re PPA Prods. 17 Liab. Litig., 460 F.3d at 1227; see also Yourish v. California Amplifier, 191 F.3d 18 983, 990-91 (9th Cir. 1999). 19 The third factor – possible prejudice to the opposing party – is, at best, neutral 20 to Plaintiff. While there is no evidence that Plaintiff’s actions have resulted in any 21 actual prejudice to Defendants as yet, “[t]he law … presumes prejudice from 22 unreasonable delay.” In re PPA Prods. Liab. Litig., 460 F.3d at 1227. 23 In addition, the fourth factor favors dismissal. As recounted above, through 24 four court orders, Plaintiff has been cautioned expressly that his failure to comply 25 with this Court’s orders by filing the requisite complying amended pleading could 26 result in the dismissal of this action under Rule 41(b). Having been so cautioned 27 repeatedly, yet having failed to take the action needed to allow this case to survive, 28 Plaintiff appears to lack any interest in pursuing this case anymore (and, instead, has 1 || decided to pursue two newly-filed lawsuits). Under these circumstances, dismissal 2 || of this case is appropriate. 3 A balancing of these factors thus leads to the conclusion that dismissal 4 || without prejudice, pursuant to Rule 41(b), is warranted. See Ferdik v. Bonzelet, 963 5 || F.2d 1258, 1263 (9th Cir. 1992) (dismissal appropriate when strongly supported by 6 || three factors); Malone v. United States Postal Serv., 833 F.2d 128, 133 n.2 (9th Cir. 7 || 1987) (dismissal appropriate when supported by four factors). 8 Accordingly, for the foregoing reasons, IT IS ORDERED that this action is 9 || dismissed without prejudice, pursuant to Rule 41(b) of the Federal Rules of Civil 10 || Procedure. 11 IT IS SO ORDERED. 12 13 |} DATED: December 14, 2020 wn 14 DOLLY{M. GEE

UNITED STATES DISTRICT JUDGE

15 Presented by: 16

GAIL J. STANDISH

18 || UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28