Donald Ray Swiger Jr v. United States of America et al

Filing 34

ORDER DISMISSING ACTIONS by Judge Dolly M. Gee. A dismissal under Rule 41 ordinarily operates as an adjudication on the merits. However, given the circumstances here Plaintiff never named a party over which this Court had jurisdiction the Court elects to dismiss the action without prejudice.IT IS SO ORDERED. Case Terminated. Made JS-6. (mz)

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

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DONALD RAY SWIGER, JR.,
Plaintiff,

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ORDER DISMISSING ACTION

v.

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Case No. CV 16-320 DMG (MRW)

UNITED STATES,
Defendant.

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The Court dismisses the action without prejudice for failure to prosecute.

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***

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This is a prisoner civil rights action. Plaintiff is an inmate at the federal

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prison facility in Lompoc. He previously was incarcerated at a U.S. military prison

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in Leavenworth, Kansas. According to the complaint, Plaintiff suffers from a

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variety of health conditions. He filed a civil complaint against the United States

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for undefined relief based on his medical treatment at those facilities. (Docket # 8-

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12, 17.)

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Magistrate Judge Wilner screened Plaintiff’s original and amended

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complaint. (Docket # 13.) Judge Wilner subsequently granted Plaintiff IFP status

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and ordered the complaint to be served on the government. (Docket # 18, 19.)

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The Court granted the government’s motion to dismiss the action. (Docket

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# 29, 31.) The Court concluded that the government did not waive sovereign

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immunity over Plaintiff’s constitutional claims, which meant that the Court did not

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have jurisdiction over the matter. Nevertheless, the Court gave Plaintiff (a pro se

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litigant) an opportunity to amend his complaint to name an appropriate defendant.

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After the Court dismissed the government, Plaintiff submitted a letter to the

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Clerk. (Docket # 32.) The confusing and rambling submission described a

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previous tort claim that Plaintiff pursued against the BOP, and attempted to

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relitigate the dismissal motion.

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Judge Wilner issued an order rejecting the submission. (Docket # 33.) The

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magistrate judge again directed Plaintiff to file a recognizable civil complaint

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naming a proper party and stating a proper federal cause of action by April 7. (Id.)

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To date, however, Plaintiff failed to do so. As things stand, there is no valid

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complaint on file and no defendant named in this action.

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***
Rule 41(b) provides that if a plaintiff “fails to prosecute or to comply with

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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 is appropriate. Plaintiff

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failed to amend his civil complaint after his claims against the government were

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dismissed. The magistrate directly informed Plaintiff of his obligation to file an

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amended complaint in order to advance the case. Plaintiff’s failure to do so

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demonstrates that he has no interest in 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. This is particularly true given that Plaintiff has not named

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any appropriate party or filed any recognizable pleading that would feasibly allow

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the litigation to continue. The Court finds that dismissal is appropriate under

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Rule 41(b). Furthermore, because Plaintiff is a pro se litigant who did not abide by

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the Court’s previous orders, no sanction short of dismissal will be effective in

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moving this case forward. Carey, 856 F.2d at 1440.

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A dismissal under Rule 41 ordinarily “operates as an adjudication on the

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merits.” However, given the circumstances here – Plaintiff never named a party

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over which this Court had jurisdiction – the Court elects to dismiss the action

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without prejudice.

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IT IS SO ORDERED.

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DATED: May 16, 2017

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___________________________________
DOLLY M. GEE
UNITED STATES DISTRICT JUDGE

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Presented by:

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____________________________________
HON. MICHAEL R. WILNER
UNITED STATES MAGISTRATE JUDGE
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