Tommy Roy Keeton v. D. Seitz et al

Filing 9

ORDER DISMISSING ACTION WITHOUT PREJUDICE by Judge Fernando M. Olguin. (see order for details) (hr)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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TOMMY ROY KEETON,
Plaintiff,
v.

) NO. CV 17-7523-FMO (KS)
)
)
) ORDER DISMISSING ACTION WITHOUT
) PREJUDICE
D. SEITZ, ET AL.,
)
)
Defendants.
_________________________________ )

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INTRODUCTION

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On October 13, 2017, Tommy Roy Keeton (“Plaintiff”), a California state prisoner

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proceeding pro se and in forma pauperis, filed a civil rights complaint pursuant to 42 U.S.C.

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§ 1983 (“Complaint”). (Dkt. No. 1.) The Court screened the Complaint pursuant to 28

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U.S.C. § 1915A, and on November 1, 2017, issued an Order dismissing the Complaint but

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granted Plaintiff leave to file a First Amended Complaint (“FAC”). (Dkt. No. 5.) On

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November 29, 2017, Plaintiff filed a FAC. (Dkt. No. 6.) On January 17, 2018, the Court

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dismissed the FAC with leave to amend and ordered Plaintiff to file a Second Amended

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Complaint (“SAC”) by no later than February 16, 2018. (Dkt. No. 7.) The Court warned

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Plaintiff that failure to comply with the order and file a Second Amended Complaint on or

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before the February 16, 2018 deadline could result in dismissal. (See id.)

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On March 6, 2018, the Court issued an Order to Show Cause (“OSC”) by April 5,

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2018 why the action should not be dismissed for failure to prosecute because Plaintiff had

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neither “filed a Second Amended Complaint, notified the Court of a change of address, nor

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otherwise communicated with the Court about his case.” (Dkt. No. 8 at 1.) Almost four

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weeks have passed since Plaintiff’s April 5, 2018 deadline to respond to the Court’s OSC and

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Plaintiff has not filed a Second Amended Complaint, updated his address with the Court, or

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communicated with the Court regarding his case. The Court, therefore, concludes that the

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action should be dismissed without prejudice for failure to prosecute and comply with court

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orders, pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule 41-1.

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DISCUSSION

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

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authority to sua sponte dismiss actions “if the plaintiff fails to prosecute or to comply

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with . . . a court order.” FED. R. CIV. P. 41(b); Link v. Wabash R. Co., 370 U.S. 626, 629-31

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(1962). In determining whether dismissal for lack of prosecution is proper, a court must

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weigh several factors, including: “(1) the public’s interest in expeditious resolution of

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litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to

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defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public

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policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639,

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642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).

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In this case, the first two factors – public interest in expeditious resolution of litigation

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and the need to manage the Court’s docket – weigh in favor of dismissal. Plaintiff has

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effectively declined to participate in the litigation. He has not communicated with the Court

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since filing his second deficient pleading more than five months ago, and he has ignored the

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Court’s March 6, 2018 OSC requiring him to show cause why the action should be allowed

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to proceed. Plaintiff’s failure to file a viable amended complaint, request an extension of

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time, or show good cause for his delay hinders the Court’s ability to move this case toward

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disposition and indicates that Plaintiff does not intend to litigate this action diligently.

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The third factor – prejudice to Defendant – also counsels in favor of dismissal. The

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Ninth Circuit has held that prejudice may be presumed from unreasonable delay.

See

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Moneymaker v. CoBen (In re Eisen), 31 F.3d 1447, 1452-53 (9th Cir. 1994); Moore v. Teflon

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Commc’ns Corp., 589 F.2d 959, 967-68 (9th Cir. 1978). The passage of more than two

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months since Plaintiff’s deadline to file his SAC constitutes an unreasonable delay. While a

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presumption of prejudice can be rebutted by a non-frivolous explanation, Plaintiff has not

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provided a non-frivolous explanation and he has not communicated with the Court regarding

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this matter since he filed the deficient FAC in November 2017. See In re Eisen, 31 F.3d at

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1453. Plaintiff’s pro se status does not excuse his unreasonable delay, as he is still subject to

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federal and local rules of procedure. Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (per

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curiam), cert. denied, 516 U.S. 838 (1995). In the absence of any explanation, non-frivolous

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or otherwise, for Plaintiff’s delay, the Court presumes prejudice. See Laurino v. Syringa

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Gen. Hosp., 279 F.3d 750, 753 (9th Cir. 2002) (presumption of prejudice can be rebutted by

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a non-frivolous explanation); Pagtalunan, 291 F.3d at 642 (citing Yourish v. California

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Amplifier, 191 F.3d 983, 991 (9th Cir. 1999).

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The fourth factor – the availability of less drastic sanctions – ordinarily counsels

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against dismissal. However, the Court attempted to avoid outright dismissal by giving

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Plaintiff the opportunity to amend the pleading, an opportunity to request an extension of

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time, and an express warning that Plaintiff’s failure to comply with the Court’s orders could

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result in dismissal. Plaintiff did not respond; indeed, he has not communicated with the

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Court about this case since November 29, 2017.

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Thus, the Court explored the only

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meaningful alternatives to dismissal in its arsenal and found that they were not effective. See

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Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (“The district court need not

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exhaust every sanction short of dismissal before finally dismissing a case, but must explore

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possible and meaningful alternatives.”) (citation omitted). The Court therefore concludes

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that sanctions other than dismissal are no longer appropriate.

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Only the fifth factor, the general policy favoring resolution of cases on the merits,

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arguably favors retention of this action on the Court’s docket.

It is, however, the

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responsibility of the moving party to move the case toward disposition on the merits at a

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reasonable pace and to refrain from dilatory and evasive tactics. Morris v. Morgan Stanley

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& Co., 942 F.2d 648, 652 (9th Cir. 1991). The Court cannot dispose of a case on its merits

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when the plaintiff fails to move the case forward, does not comply with court orders, and

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does not explain his silence or delay. Plaintiff has now allowed this matter to languish on the

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Court’s docket for over six months without a viable initial pleading despite the Court’s

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repeated instructions and warnings. It therefore appears that the Court’s retention of this

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action would not increase the likelihood that the matter would be resolved on its merits.

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CONCLUSION

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For the foregoing reasons, the above captioned matter is dismissed without prejudice;

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and Judgment shall be entered accordingly. IT IS SO ORDERED.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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As required by FED. R. CIV. P. 58(a)(1), final judgment will be issued separately.

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DATED:

May 11, 2018

_______________/s/_________________
FERNANDO M. OLGUIN
UNITED STATES DISTRICT JUDGE

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Presented by:
___________________________________
KAREN L. STEVENSON
UNITED STATES MAGISTRATE JUDGE

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