Ceal Howard v. County of Los Angeles et al

Filing 13

ORDER DISMISSING ACTION WITHOUT PREJUDICE by Judge John F. Walter. This action is DISMISSED. A dismissal under Rule 41(b) ordinarily operates as an adjudication on the merits. However, under the circumstances Plaintiffs inability to identify his tortfeasor and the fact that no party was ever served with the complaint or required to defend the action the Court exercises its discretion to dismiss the action without prejudice. (See Order for further details) Case Terminated. Made JS-6. (vm)

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IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA

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CEAL HOWARD,
Plaintiff,

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Case No. CV 14-8832 JFW (MRW)
ORDER DISMISSING ACTION
WITHOUT PREJUDICE

v.
COUNTY OF LOS ANGELES,
et al.,
Defendants.

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The Court vacates the reference of this action to the Magistrate Judge and
dismisses the action for failure to prosecute.
***
This is a pro se civil rights action. Plaintiff formerly was an inmate at the
Men’s Central Jail in Los Angeles. Plaintiff contends that one of the guards at the
jail threw away Plaintiff’s dentures. The Court dismissed a previous iteration of
this action (Howard v. County, CV 13-7081 JSL (MRW) (C.D. Cal.)) without
prejudice because Plaintiff was unable to identify any individual tortfeasor who

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threw out Plaintiff’s dentures. When Plaintiff re-filed the action, he was able to

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identify one person – “Deputy Johnson” – in the complaint as the culpable party.

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Magistrate Judge Wilner screened the complaint pursuant to the Prison

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Litigation Reform Act [28 U.S.C. § 1915A]. Judge Wilner authorized Plaintiff to

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proceed in forma pauperis and directed the Marshals Service to serve Deputy

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Johnson with the complaint. (Docket # 6.) However, Judge Wilner informed

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Plaintiff that he might be required to provide additional information to effect

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proper service under the Federal Rule of Civil Procedure. Judge Wilner also

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informed Plaintiff that failure to provide that information could be the basis for

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dismissal of the action. (Id. at 1-2.) The magistrate judge concluded that Plaintiff

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had not properly pled a cause of action against the County or any of the individual

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supervisors or dentists that Plaintiff purported to name as defendants. (Id. at 2-3.)

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The Marshals Service was unable to serve the complaint on Deputy Johnson.

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The civil litigation unit at the Sheriff’s Department stated that more information –

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first name or badge number – was needed to identify the correct defendant with the

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agency. (Docket # 9.)

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In early February 2015, the magistrate judge issued an order requiring

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Plaintiff to provide additional information regarding service. (Docket # 11.)

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Judge Wilner noted that the mere identification of the defendant as “Deputy

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Johnson” was “functionally akin to simply naming a Doe defendant. If a litigant is

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unable to uncover the identity of a Doe defendant, dismissal of the action may be

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required. Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980).” (Id.) The

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magistrate judge further advised Plaintiff that the action was subject to dismissal

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for failure to prosecute under Rule 41 if Plaintiff did not provide further

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information. Plaintiff did not provide information by the deadline set forth in the

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Court’s order.

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In March 2015, Judge Wilner issued a second order requiring Plaintiff (a) to

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explain why he ignored the Court’s February order and (b) to provide the requested

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service information. (Docket # 12.) That order stated that “[f]ailure to file a

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timely response will lead to the dismissal of the lawsuit.”

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To date, Plaintiff has not responded to the Court’s March order or provided
any additional service information.
***
Rule 41(b) provides that if a plaintiff “fails to prosecute or to comply with
these rules or a court order, a defendant may move to dismiss the action or any

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claim against it.” Dismissal also may be ordered by the Court sua sponte. Link v.

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Wabash R.R., 370 U.S. 626, 629-30 (1962). Dismissal of a civil action under

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Rule 41 may be appropriate to advance the public’s interest in the expeditious

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resolution of litigation, the court’s need to manage its docket, and to avoid the risk

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of prejudice to defendants. Omstead v. Dell, Inc., 594 F. 3d 1081, 1084 (9th Cir.

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2010). Additionally, a court should consider the public policy favoring disposition

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of cases on their merits and the availability of less drastic alternatives in its

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evaluation. Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988).

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In the present action, the Court finds dismissal of the action is appropriate.

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The Court gave Plaintiff a clear explanation as to the information that the Marshals

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Service reasonably needed to serve Defendant in this action. However, Plaintiff

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failed to respond to the Court’s order at all, and has not provided additional

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information to identify the guard involved in the case. The Court also has no basis

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to believe that the Sheriff’s Department can properly identify which employee was

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allegedly involved in this relatively minor incident several years ago. Moreover,

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the Court’s second order in March 2014 gave the Plaintiff an additional

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opportunity to explain himself and provide the requested information. Plaintiff’s

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failure to respond to the Court’s orders demonstrates that he has no interest in

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advancing the action here.

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By contrast, the Court, the defense, and the public have a strong interest in

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terminating this action. Furthermore, because Plaintiff is a pro se litigant who did

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not abide by the Court’s clear instruction regarding the action, no sanction short of

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dismissal will be effective in moving this case forward. Carey, 856 F.2d at 1440.

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The Court finds that dismissal is appropriate under Rule 41(b).

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Accordingly, for the above reasons, this action is DISMISSED. A dismissal

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under Rule 41(b) ordinarily “operates as an adjudication on the merits.” However,

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under the circumstances – Plaintiff’s inability to identify his tortfeasor and the fact

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that no party was ever served with the complaint or required to defend the action –

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the Court exercises its discretion to dismiss the action without prejudice.

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IT IS SO ORDERED.

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Dated: April 28, 2015

___________________________________
HON. JOHN F. WALTER
UNITED STATES DISTRICT JUDGE

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