Albert M Franco Jr v. County of Los Angeles et al

Filing 6

ORDER DISMISSING ACTION FOR FAILURE TO PROSECUTE AND FAILURE TO STATE A CLAIM by Judge John F. Walter. Accordingly, this action is dismissed under the Court's inherent power to achieve the orderly and expeditious disposition of cases by dismissing actions for failure to prosecute and for the reasons outlined in the Magistrate Judges February 23, 2015 order 5 . LET JUDGMENT BE ENTERED ACCORDINGLY. (See Order for Further Details) (kl)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ALBERT M. FRANCO, JR.,

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Plaintiff,

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vs.

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COUNTY OF LOS ANGELES et
al.,
Defendants.

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Case No. CV 15-0601-JFW (JPR)
ORDER DISMISSING ACTION FOR
FAILURE TO PROSECUTE AND FAILURE
TO STATE A CLAIM

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Plaintiff filed pro se his civil-rights complaint on January

19 27, 2015, and two days later the Court granted his request to
20 proceed in forma pauperis. On February 23, 2015, the Magistrate
21 Judge dismissed the Complaint with leave to amend because it
22 suffered from numerous deficiencies. She expressly warned
23 Plaintiff that if he failed to timely file a sufficient amended
24 complaint by March 16, 2015, his lawsuit would be subject to
25 dismissal for the reasons stated in the order and for failure to
26 prosecute. To date, Plaintiff has not filed an amended
27 complaint.
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Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (per
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1 curiam), examined when it is appropriate to dismiss a plaintiff’s
2 lawsuit for failure to prosecute.

See also Link v. Wabash R.R.

3 Co., 370 U.S. 626, 629-30 (1962) (“The power to invoke
4 [dismissal] is necessary in order to prevent undue delays in the
5 disposition of pending cases and to avoid congestion in the
6 calendars of the District Courts.”).
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In determining whether to dismiss a pro se plaintiff’s

8 action for failure to prosecute, a court must consider “(1) the
9 public’s interest in expeditious resolution of litigation; (2)
10 the court’s need to manage its docket; (3) the risk of prejudice
11 to the defendants; (4) the public policy favoring disposition of
12 cases on their merits[;] and (5) the availability of less drastic
13 sanctions.”
14 omitted).

Carey, 856 F.2d at 1440 (internal quotation marks

Unreasonable delay creates a rebuttable presumption of

15 prejudice to the defendants that can be overcome only with an
16 affirmative showing of just cause by the plaintiff.

See In re

17 Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994).
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Here, the first, second, third, and fifth Carey factors

19 militate in favor of dismissal.

In particular, Plaintiff has

20 offered no explanation for his failure to file an amended
21 complaint.

Thus, he has not rebutted the presumption of

22 prejudice to Defendants.

No less drastic sanction is available,

23 as Plaintiff has ceased communicating with the Court, and the
24 Court is therefore unable to manage its docket.

Although the

25 fourth Carey factor weighs against dismissal — as it always does
26 — together the other factors outweigh the public’s interest in
27 disposing of the case on its merits.

See Ferdik v. Bonzelet, 963

28 F.2d 1258, 1261-62 (9th Cir. 1992) (upholding dismissal of pro se
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1 civil-rights action for failure to timely file amended complaint
2 remedying deficiencies in caption); Baskett v. Quinn, 225 F.
3 App’x 639, 640 (9th Cir. 2007) (upholding dismissal of pro se
4 civil-rights action for failure to state claim or timely file
5 amended complaint).
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ORDER

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Accordingly, this action is dismissed under the Court’s

8 inherent power to achieve the orderly and expeditious disposition
9 of cases by dismissing actions for failure to prosecute and for
10 the reasons outlined in the Magistrate Judge’s February 23, 2015
11 order.
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LET JUDGMENT BE ENTERED ACCORDINGLY.

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14 DATED: April 16, 2015
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___________________________
JOHN F. WALTER
U.S. DISTRICT JUDGE

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Presented by:

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Jean P. Rosenbluth

19 U.S. Magistrate Judge
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