Leon v. Mesa Police Department et al

Filing 20

ORDER: Pursuant to Rule 41(b) of the Federal Rules of Civil Procedure this action is dismissed without prejudice and the Clerk of Court shall enter judgment accordingly. Signed by Senior Judge James A Teilborg on 10/19/2017. (REK)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Rene Daniel Leon, Plaintiff, 10 11 vs. 12 Mesa Police Department, et al., Defendants. 13 ) ) ) ) ) ) ) ) ) ) CIV-16-3656-PHX-JAT (MHB) ORDER 14 On June 22, 2017, Plaintiff Rene Daniel Leon filed a pro se civil rights Second 15 Amended Complaint. The Court screened the matter and, ultimately, sent Plaintiff a service 16 packet including the Second Amended Complaint, the screening Order, and both summons 17 and request for waiver forms for Defendant Ekren. In the screening order, the Court ordered 18 Plaintiff to complete and return the service packet to the Clerk of Court within 21 days, after 19 which the U.S. Marshal Service would notify the Defendant and effect service. Plaintiff was 20 warned that if he failed to timely comply with the provisions set forth in the screening Order, 21 the action would be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil 22 Procedure. 23 The record reflecting that Plaintiff had not returned the service packet nor otherwise 24 effected service on Defendant, the Court ordered Plaintiff to show cause why this matter 25 should not be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for 26 failure to comply with the Court’s Order. Plaintiff has not responded to the order to show 27 28 1 cause or communicated with the Court. The Court, therefore, will determine whether 2 dismissal is appropriate. 3 Plaintiff has the general duty to prosecute this case. See Fidelity Philadelphia Trust 4 Co. v. Pioche Mines Consolidated, Inc., 587 F.2d 27, 29 (9th Cir. 1978). Rule 41(b) of the 5 Federal Rules of Civil Procedure provides that “[f]or failure of the plaintiff to prosecute or 6 to comply with these rules or any order of court, a defendant may move for dismissal of an 7 action.” In Link v. Wabash Railroad Co., 370 U.S. 626, 629-31 (1962), the Supreme Court 8 recognized that a federal district court has the inherent power to dismiss a case sua sponte 9 for failure to prosecute, even though the language of Rule 41(b) of the Federal Rules of Civil 10 Procedure appears to require a motion from a party. Moreover, in appropriate circumstances, 11 the Court may dismiss a complaint for failure to prosecute even without notice or hearing. 12 See id. at 633. 13 In determining whether Plaintiff’s failure to prosecute warrants dismissal of the case, 14 the Court must weigh the following five factors: “(1) the public’s interest in expeditious 15 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to 16 the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the 17 availability of less drastic sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) 18 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). “The first two of these 19 factors favor the imposition of sanctions in most cases, while the fourth factor cuts against 20 a default or dismissal sanction. Thus the key factors are prejudice and availability of lesser 21 sanctions.” Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir. 1990). 22 Here, the first, second, and third factors favor dismissal of this case. Plaintiff’s failure 23 to respond to Court orders prevents the case from proceeding in the foreseeable future. The 24 fourth factor, as always, weighs against dismissal. The fifth factor requires the Court to 25 consider whether a less drastic alternative is available. The Court has already ordered 26 Plaintiff to show cause why this matter should not be dismissed. Plaintiff has not responded. 27 28 -2- 1 The Court finds that only one less drastic sanction is realistically available. Rule 2 41(b) provides that a dismissal for failure to prosecute operates as an adjudication upon the 3 merits “[u]nless the court in its order for dismissal otherwise specifies.” In the instant case, 4 the Court finds that a dismissal with prejudice would be unnecessarily harsh. The complaint 5 and this action will therefore be dismissed without prejudice pursuant to Rule 41(b) of the 6 Federal Rules of Civil Procedure. 7 IT IS THEREFORE ORDERED that pursuant to Rule 41(b) of the Federal Rules 8 of Civil Procedure this action is dismissed without prejudice and the Clerk of the Court shall 9 enter judgment accordingly. 10 DATED this 19th day of October, 2017. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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