Charles Wade v. Debbie Asuncion et al

Filing 10

ORDER DISMISSING ACTION WITHOUT PREJUDICE by Judge Andre Birotte Jr. Case Terminated. Made JS-6. (ec)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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CHARLES WADE,

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Plaintiff,
v.
DEBBIE ASUNCION, et al.,

Case No. 2:17-cv-05841-AB (GJS)
ORDER DISMISSING ACTION
WITHOUT PREJUDICE

Defendants.

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On August 7, 2017, Plaintiff Charles Wade (“Plaintiff”) filed a complaint

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under 42 U.S.C. § 1983 against Warden Debbie Asuncion, the State of California,

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the California Department of Corrections and Rehabilitation, California State

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Prison—Lancaster (CSP-Lancaster), Sandy Ramirez, Rebecca Ramirez, Sharon

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Ramirez, and Doe mental health employees. [Dkt. 1 (“Compl.”).] On October 11,

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2017, the Court denied Plaintiff’s request to proceed without prepayment of the

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filing fee based on inadequate showing of indigency, and gave Plaintiff 30 days to

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pay the filing fee or the case would be dismissed. [Dkt. 7.] On October 18, 2017,

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Plaintiff paid the filing fee. [Dkt. 8.]

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Pursuant to its screening obligations under 42 U.S.C. § 1997e(c)(1), the Court

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screened the Complaint and found it to be substantially defective. For example, the

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claims alleged against three of the Defendants are barred by the Eleventh

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Amendment. The claims alleged against the remaining Defendants are barely

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intelligible and fail entirely to state a cognizable claim under the Eighth

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Amendment, Due Process Clause, or any other constitutional amendment. On

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December 14, 2017, the Court issued an Order that: (1) dismissed the Complaint,

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without leave to amend, with respect to the claims barred by the Eleventh

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Amendment; and (2) dismissed the Complaint, with leave to amend within 30 days,

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with respect to Plaintiff’s claim against the remaining Defendants [Dkts. 8, 9.] The

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Court explicitly cautioned Plaintiff that “failure to timely file a First Amended

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Complaint within thirty days of this Order, or failure to correct the deficiencies

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described herein, may result in this action being dismissed.” [Dkt. 8 at p. 6.]
It is now more than ten days past Plaintiff’s deadline to file a First Amended

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Complaint, and he has neither filed a First Amended Complaint nor requested an

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extension of time to do so. The Court, therefore, assumes that he no longer wishes

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to pursue this case and that this action may be dismissed.

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Rule 41(b) of the Federal Rules of Civil Procedure grants federal district

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courts the authority to sua sponte dismiss actions for failure to prosecute. Link v.

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Wabash R. Co., 370 U.S. 626, 629-30 (1962). In determining whether dismissal for

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lack of prosecution is proper, a court must weigh several factors, including: (1) the

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

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manage its docket; (3) the risk of prejudice to defendants; (4) the availability of less

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drastic sanctions; and (5) the public policy favoring the disposition of cases on their

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merits. In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226

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(9th Cir. 2006).

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In this case, only the fifth factor, the general policy favoring resolution of

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cases on the merits, arguably could favor retention of this action on the Court’s

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docket. However, for the reasons set forth in the December 14, 2017 Order, the

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Complaint is defective, and given its defects, dismissal was required. There is no

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operative pleading on file in this case due to Plaintiff’s noncompliance with the
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December 14, 2017 Order. Hence, the merits of Plaintiff’s claim, if any, do not

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favor retention of this case on the docket.
Plaintiff’s delay necessarily implicates both the public interest in the

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expeditious resolution of litigation and the Court’s need to manage its docket

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efficiently, the first and second factors. See In re PPA Prods. Liab. Litig., 460 F.3d

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at 1227; see also Yourish v. California Amplifier, 191 F.3d 983, 990-91 (9th Cir.

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1999). Plaintiff’s failure to comply with the Court’s December 14, 2017 Order has

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caused this action to come to a halt, thereby impermissibly allowing Plaintiff, rather

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than the Court, to control the pace of the proceedings in this case.
The third factor—possible prejudice to the opposing party—is, at best, neutral

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to Plaintiff. The Complaint is based, for the most part, on “mind control” and

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“drugs” that Plaintiff received on an unspecified date as a form of “mental health

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treatment” while he was at CSP-Lancaster. While there is no evidence that

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Plaintiff’s actions have resulted in any actual prejudice to any Defendant as yet,

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“[t]he law … presumes prejudice from unreasonable delay.” In re PPA Prods. Liab.

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Litig., 460 F.3d at 1227.

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In addition, the fourth factor favors dismissal. The December 14, 2017 Order

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specifically admonished Plaintiff that his failure to comply with the Order and to file

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a First Amended Complaint could result in the dismissal of this action. [Dkt. 8 at p.

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6.] Having been so cautioned, yet having failed to respond to the December 14,

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2017 Order, it appears that Plaintiff does not intend to pursue this case. Under these

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circumstances, dismissal is appropriate.
A balancing of these factors thus leads to the conclusion that dismissal

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without prejudice, pursuant to Rule 41(b), is warranted. See Yourish, 191 F.3d at

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992 (finding Rule 41(b) dismissal based on plaintiff’s failure to file amended

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complaint as ordered was warranted when strongly supported by three factors).

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Accordingly, for the foregoing reasons, IT IS ORDERED that this case is

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dismissed, without prejudice, pursuant to Rule 41(b) of the Federal Rules of Civil

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Procedure for lack of prosecution.

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IT IS SO ORDERED.

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DATED: March 07, 2018

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_______________________________
ANDRÉ BIROTTE JR.
UNITED STATES DISTRICT JUDGE

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Presented by:

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_______________________________
GAIL J. STANDISH
UNITED STATES MAGISTRATE JUDGE

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