Williams v. Yuma Police Department et al

Filing 150

ORDER: This action is dismissed with prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. The Clerk is directed to terminate this action. Signed by Senior Judge David G Campbell on 5/2/19. (GMP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Toby Bolden Williams,

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Plaintiff,

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Yuma Police Department, et al.,

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ORDER

v.

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No. CV 18-00884-PHX-DGC (CDB)

Defendants.

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On March 27, 2019, the Court issued an order giving Plaintiff one month to file an

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amended complaint with respect to his dismissed claims against Defendants City of Yuma,

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Yuma County, and City of Somerton, and to show cause why Defendants Binuya and Villa

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should not be dismissed for failure to serve process on them. Doc. 141 at 21-22. Plaintiff

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has filed no amended complaint, and his response to the Court’s order to show cause

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provides no explanation for the lack of service of process. Doc. 146. The Court will

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dismiss this action with prejudice for failure to prosecute.

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Plaintiff has the duty to prosecute his case even though he is proceeding pro se. See

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Fidelity Phila. Trust Co. v. Pioche Mines Consol., Inc., 587 F.2d 27, 29 (9th Cir. 1978).

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Rule 41(b) provides for the dismissal of an action “[i]f the plaintiff fails to prosecute or to

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comply with these rules or a court order[.]” Fed. R. Civ. P. 41(b); see also Link v. Wabash

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R.R., 370 U.S. 626, 629-31 (1962) (recognizing that a district court has inherent power to

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dismiss a case sua sponte for failure to prosecute). A dismissal under Rule 41(b) generally

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is with prejudice. See Fed. R. Civ. P. 41(b).

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In determining whether a plaintiff’s failure to prosecute or comply with an order

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warrants dismissal of the case, the district court must weigh five factors: “(1) the public’s

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interest in expeditious resolution of litigation; (2) the court’s need to manage its docket;

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(3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of

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cases on their merits; and (5) the availability of less drastic sanctions.” Carey v. King, 856

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F.2d 1439, 1440 (9th Cir. 1988) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th

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Cir. 1986)).

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The first two factors “favor the imposition of sanctions in most cases,” including

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this one. Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir. 1990). Plaintiff’s failure to

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amend the complaint and serve process has “caused ‘the action to come to a complete halt’

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and ha[s] allowed [Plaintiff] to control the pace of the docket rather than the Court.”

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Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999); see Richardson v. Cty. of

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Santa Barbara Jail, No. CV 09-3373 DMG FFM, 2010 WL 4796457, at *2 (C.D. Cal. Mar.

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8, 2010); Wolff v. California, 318 F.R.D. 627, 631 (C.D. Cal. 2016) (“Plaintiff’s inaction

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hinders the Court’s ability to move this case toward disposition and indicates that Plaintiff

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does not intend to litigate this action diligently. . . . As a result, the Court's need to manage

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its docket favors dismissal.”). The third factor – prejudice to Defendants – also supports

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dismissal. See Yourish, 191 F.3d at 991-92 (the delay caused by the plaintiff’s failure to

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timely amend was sufficient prejudice to the defendants); Wolff, 318 F.R.D. at 631

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(“Plaintiff’s delay in prosecuting this case and obeying the Courts orders is unreasonable,

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and the risk of prejudice strongly weighs in favor of dismissal.”). The fourth factor – the

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preference for deciding cases on their merits – always weighs against dismissal.

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The fifth factor requires the Court to consider whether a less drastic alternative is

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available. The Court granted Plaintiff’s request to amend the complaint and gave him 30

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days to do so (Doc. 141 at 18), but Plaintiff has not filed an amended pleading. Nor has he

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served process on Defendants Binuya and Villa. Rather, Plaintiff filed a response to the

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order to show cause accusing the Court of going out of its way to summarily dismiss his

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claims. Doc. 146 at 2. But the Court explained its reasons for the dismissal and granted

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Plaintiff leave to cure deficiencies in the complaint.

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Balancing the factors identified in Carey, the Court concludes that dismissal of this

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action is warranted. See Yourish, 191 F.3d at 992 (“Because we have found that three

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factors strongly favor dismissal, we feel that the district court did not abuse its discretion

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in dismissing Plaintiffs’ case for failing to amend in a timely fashion.”).

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IT IS ORDERED:

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1.

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This action is dismissed with prejudice pursuant to Rule 41(b) of the

Federal Rules of Civil Procedure.

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2.

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Dated this 2nd day of May, 2019.

The Clerk is directed to terminate this action.

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