James Thornberg v. L.D. Jones et al

Filing 83

ORDER DISMISSING ACTION WITH PREJUDICE by Judge Dale S. Fischer. (See Order for details) Case Terminated. Made JS-6. (vm)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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JAMES THORNBERG,

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Plaintiff,

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ORDER DISMISSING ACTION
WITH PREJUDICE

v.

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Case No. CV 17-2676 DSF (MRW)

LARRY D. JONES, et al.,
Defendants.

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The Court dismisses the action with prejudice for failure to prosecute and
for failure to respond to court orders.

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***
1.

This is a civil rights action involving a former federal prisoner.

Plaintiff Thornburg accused several correctional officers at the Lompoc federal
prison of misconduct during his incarceration.
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Magistrate Judge Wilner screened several versions of Plaintiff’s

complaints. 28 U.S.C. § 1915A. Judge Wilner ultimately authorized service of
process on three of the officers. (Docket # 6, 7, 41, 42.)

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3.

The government (representing the correctional officers) moved to

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dismiss the operative versions of the complaints. In October 2018, the assigned

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district judge (Judge Fischer) accepted Magistrate Judge Wilner’s

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recommendation to dismiss the complaints: (a) without leave to amend against

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two of the officers; and (b) with leave to amend against a third. (Docket

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# 73-74.)

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4.

Judge Wilner then issued several orders requiring Plaintiff to file an

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amended complaint or dismiss the action. Those orders were returned by the

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Postal Service as undeliverable.1 (Docket # 75-79.)

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5.

In early January 2019, Plaintiff filed a response to an order to show

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cause regarding the action. (Docket # 81.) Plaintiff discussed his difficulties in

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changing his local post office box address. However, Plaintiff failed to explain

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whether he intended to pursue an amended complaint against the remaining

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officer.

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6.

Judge Wilner issued a fourth post-dismissal order to Plaintiff.

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(Docket # 82.) The order gave Plaintiff a final deadline in mid-February 2019 to

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either amend his complaint or request dismissal of the action. The order

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specifically informed Plaintiff that his action was subject to dismissal under

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Federal Rule of Civil Procedure 41. The order also cited the Ninth Circuit’s

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recent opinion (Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884 (9th

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Cir. 2019)) regarding dismissal of civil actions.

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7.

Plaintiff failed to file an amended complaint (or any other response)

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by the deadline. As a result, since the dismissal of the earlier complaints in

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October 2018, Plaintiff has not pled a viable cause of action against any party.

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***

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Plaintiff was discharged from Lompoc and placed on supervised
release in this district in 2018. He apparently changed his mailing address
several times following his release.
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8.

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

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comply with these rules or a court order, a defendant may move to dismiss the

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action or any claim against it.” Dismissal also may be ordered by the Court

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sua sponte. Link v. Wabash R.R., 370 U.S. 626, 629-30 (1962).

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9.

Rule 41(b) authorizes a court to dismiss a civil action when a

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plaintiff “has not filed an amended complaint after being given leave to do so

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and has not notified the court of his intention not to file an amended complaint.”

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Harris v. Magnum, 863 F.3d 1133, 1142 (9th Cir. 2017). Rule 41(b) applies

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when a court “mandate[s] the filing of an amended complaint” and “indicate[s]

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that failure to do so would result in dismissal” under the rule. Applied

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Underwriters, 913 F.3d at 892.

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10.

A district court must consider a variety of factors before dismissing

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an action under Rule 41(b). They are: the public’s interest in the expeditious

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resolution of litigation; the court’s need to manage its docket; the risk of

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prejudice to defendants; the public policy favoring disposition of cases on their

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merits; and the availability of less drastic alternatives to dismissal. Omstead v.

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Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010); Yourish v. Cal. Amplifier, 191

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F.3d 983, 986 (9th Cir. 1999).

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***
11.

In the present action, dismissal is appropriate. Plaintiff did not

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respond to any of the magistrate judge’s orders directing Plaintiff to file an

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amended complaint. The most recent order (sent to Plaintiff’s updated address)

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expressly ordered Plaintiff to file a complaint by a reasonable deadline or risk

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dismissal under Rule 41(b). (Docket # 82.) Plaintiff has not presented an

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amended complaint since the dismissal of the last iteration in October 2018.

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12.

Plaintiff’s failure to respond to the Court’s order demonstrates that

he has no interest in advancing the action on the merits of his claim. By

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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

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has not abided by the Court’s recent orders, no sanction short of dismissal will

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be effective in moving this case forward. Omstead, 594 F.3d at 1084. The

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

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Underwriters, 913 F.3d at 892.

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13.

Accordingly, this action is DISMISSED with prejudice.

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IT IS SO ORDERED.
DATED: March 12, 2019

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Honorable Dale S. Fischer
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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