Vijan #184869 v. Corizon Health Services et al

Filing 21

ORDER - IT IS THEREFORE ORDERED that pursuant to Rule 41(b) of the Federal Rules of Civil Procedure Plaintiff=s claims against Defendant Henley are dismissed without prejudice. (See document for further details). Signed by Judge David G Campbell on 5/9/18. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Masum Vijan,
Plaintiff,

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ORDER

v.

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No. CV-16-04513-PHX-DGC (MHB)

Corizon Health Services, et al.,

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Defendants.

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On December 22, 2016, Plaintiff Masum Vijan, who is confined in the Arizona

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State Prison Complex-Lewis, filed a pro se civil rights Complaint pursuant to 42 U.S.C.

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' 1983 and paid the filing fee. In a May 9, 2017 Order, the Court granted the Application

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to Proceed and dismissed the Complaint because Plaintiff had failed to state a claim. The

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Court gave Plaintiff 30 days to file an amended complaint that cured the deficiencies

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identified in the Order.

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On May 30, 2017, Plaintiff filed a First Amended Complaint (Doc. 8). The Court

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ordered Defendants Smalley, Dannemiller, and Henley to answer Count One and

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Defendant Elijah to answer Counts Two and Three of the First Amended Complaint. On

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December 1, 2017, attorneys Paul Gattone and Ashley Gilpin filed a Notice of

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Appearance on behalf of Plaintiff. On December 11, 2017, Defendants Smalley, Elijah,

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and Dannemiller filed an Answer.

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The record reflecting that Defendant Henley had not been served, the Court

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ordered Plaintiff (who is represented by counsel) to show cause why Defendant Henley

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should not be dismissed from this matter for failure to serve. On January 2, 2018,

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counsel for Plaintiff filed a response to the Court=s order stating that APlaintiff, through

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counsel, is making every effort to complete service on Defendant Henley, and seeks

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additional time in which to effectuate service.@ Almost two-and-a-half-months later, the

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record again reflecting that Defendant Henley had not been served, the Court ordered

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Plaintiff to show cause why this matter should not be dismissed as to Defendant Henley.

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Plaintiff filed another response essentially requesting more time.

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The Court, finding that reasonable efforts have been made to provide Plaintiff with

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the time needed to effect service, will deny Plaintiff=s request. Ultimately, it is Plaintiff=s

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obligation to ensure that each Defendant is served.

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Thus, the Court, finding that (1) reasonable efforts have been made to provide

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Plaintiff with the time needed to effect service, (2) Defendant Henley has not been

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served, and (3) the time for completing service has expired, will determine whether

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dismissal of this matter as to Defendant Henley is appropriate.

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Plaintiff has the general duty to prosecute this case. See Fidelity Philadelphia

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Trust Co. v. Pioche Mines Consolidated, Inc., 587 F.2d 27, 29 (9th Cir. 1978). Rule 41(b)

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of the Federal Rules of Civil Procedure provides that A[f]or failure of the plaintiff to

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prosecute or to comply with these rules or any order of court, a defendant may move for

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dismissal of an action.@ In Link v. Wabash Railroad Co., 370 U.S. 626, 629-31 (1962),

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the Supreme Court recognized that a federal district court has the inherent power to

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dismiss a case sua sponte for failure to prosecute, even though the language of Rule 41(b)

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of the Federal Rules of Civil Procedure appears to require a motion from a party.

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Moreover, in appropriate circumstances, the Court may dismiss a complaint for failure to

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prosecute even without notice or hearing. See id. at 633.

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In determining whether Plaintiff=s failure to prosecute warrants dismissal, the

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Court must weigh the following five factors: A(1) the public=s interest in expeditious

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resolution of litigation; (2) the court=s need to manage its docket; (3) the risk of prejudice

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to the defendants; (4) the public policy favoring disposition of cases on their merits; and

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(5) the availability of less drastic sanctions.@ Carey v. King, 856 F.2d 1439, 1440 (9th

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Cir. 1988) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). AThe

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first two of these factors favor the imposition of sanctions in most cases, while the fourth

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factor cuts against a default or dismissal sanction. Thus the key factors are prejudice and

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availability of lesser sanctions.@ Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir. 1990).

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Here, the first, second, and third factors favor dismissal. Plaintiff=s failure to serve

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Defendant Henley prevents the case against him from proceeding in the foreseeable

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future. The fourth factor, as always, weighs against dismissal. The fifth factor requires

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the Court to consider whether a less drastic alternative is available. The Court has

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already made reasonable efforts to provide Plaintiff with the time needed to effect

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service.

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The Court finds that only one less drastic sanction is realistically available. Rule

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41(b) provides that a dismissal for failure to prosecute operates as an adjudication upon

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the merits A[u]nless the court in its order for dismissal otherwise specifies.@ In the instant

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case, the Court finds that a dismissal with prejudice would be unnecessarily harsh.

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Plaintiff=s claims against Defendant Henley will therefore be dismissed without prejudice

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pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.

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IT IS THEREFORE ORDERED that pursuant to Rule 41(b) of the Federal

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Rules of Civil Procedure Plaintiff=s claims against Defendant Henley are dismissed

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without prejudice.

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Dated this 9th day of May, 2018.

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