Ivan Dion McGee v. San Bernardino County Sheriffs et al

Filing 7

ORDER DISMISSING ACTION FOR FAILURE TO COMPLY WITH A COURT ORDER by Judge Percy Anderson. It is ordered that the action is dismissed without prejudice. Fed. R. Civ. P. 41(b). (See document for further details). (aco)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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IVAN DION MCGEE,

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Case No. 5:25-cv-00195-PA (SP)
ORDER DISMISSING ACTION FOR
FAILURE TO COMPLY WITH A
COURT ORDER

Plaintiff,
v.
SAN BERNARIDNO COUNTY
SHERIFFS, et al.,
Defendants.

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INTRODUCTION

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On January 22, 2025, Plaintiff, a prisoner, filed a Civil Rights Complaint

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and a Request to Proceed Without Prepayment of Filing Fees (“IFP request”).

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(ECF Nos. 1-2.) Plaintiff alleged that he was injured after slipping and falling in

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the prison shower, due to its design and condition. (ECF No. 1 at 2-3, 5.)

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On January 30, 2025, the Court postponed ruling on the IFP request until

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Plaintiff provided more information. (ECF No. 4.) The Court advised Plaintiff

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that a slippery shower floor, by itself, was not a civil rights violation. (Id.)

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Accordingly, the Court ordered Plaintiff to file an Amended Complaint in which

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he alleged, if he could, exacerbating conditions such that the safety hazard posed a

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serious, unavoidable threat to his safety. (Id.) The Court warned Plaintiff that the

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failure to comply with the order would result in dismissal of this case. (Id.)

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On February 13, 2025, the Court’s order was returned as undeliverable

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because Plaintiff is no longer in custody. (ECF No. 5.) On February 18, 2025,

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another order from the Court was returned as undeliverable for the same reason.

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(ECF No. 6.) Plaintiff did not provide an updated address.

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As of this date, more than 30 days after the Court’s order requiring an

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Amended Complaint on January 30, 2025, Plaintiff has not filed an Amended

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Complaint or communicated with the Court.

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DISCUSSION

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A.

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A district court has the inherent power under Federal Rule of Civil Procedure

Legal Standard.

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41(b) to dismiss an action for failure to prosecute or to comply with the court’s

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order. Link v. Wabash R. Co., 370 U.S. 626, 631 (1962). Specifically, the failure of

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a plaintiff to comply with a district court’s order to file an amended complaint is

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properly met with the sanction of dismissal under Rule 41(b). Applied

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Underwriters, Inc., v. Lichtenegger, 913 F.3d 884, 891 (9th Cir. 2019) (collecting

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cases). “Under Ninth Circuit precedent, when a plaintiff fails to amend his

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complaint after the district judge dismisses the complaint with leave to amend, the

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dismissal is typically considered a dismissal for failing to comply with a court order

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rather than for failing to prosecute the claim.” Yourish v. California Amplifier, 191

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

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“[I]n order for a court to dismiss a case as a sanction, the district court must

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consider five factors: ‘(1) the public's interest in expeditious resolution of litigation;

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

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(4) the public policy favoring disposition of cases on their merits; and (5) the

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availability of less drastic alternatives.’” Yourish, 191 F.3d at 986 (quoting

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Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998)). A district
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court’s sanction of dismissal generally will be affirmed where at least four factors

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support dismissal or where at least three factors strongly support it. Hernandez, 138

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F.3d at 399. As stated below, four of the five factors support dismissal.

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B.

Analysis.
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The Public’s Interest in Expeditious Resolution.

The first factor supports dismissal. “[T]he public’s interest in expeditious
resolution of litigation always favors dismissal.” Yourish, 191 F.3d at 990.
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The Court’s Need to Manage Its Docket

The second factor also supports dismissal. Plaintiff’s failure to respond to

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the Court’s Order interferes with the Court’s ability to manage its docket. See

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Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (“The trial judge is in the

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best position to determine whether the delay in a particular case interferes with

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docket management and the public interest. Arguably, Pagtalunan’s petition has

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consumed some of the court’s time that could have been devoted to other cases on

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the docket.”) (internal citation omitted); see also Irvin v. Madrid, 749 F. App’x

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546, 547 (9th Cir. 2019) (“The second factor also favors dismissal because the

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district court is in the best position to determine whether a particular set of

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circumstances interferes with docket management.”).

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3.

The Risk of Prejudice to Defendants.

The third factor also supports dismissal. The risk of prejudice is “related to the

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plaintiff’s reason for defaulting in failing to timely amend.” Yourish, 191 F.3d at

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991. The record suggests no apparent reason for Plaintiff’s failure to comply with or

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respond to the Court’s latest Order. This indicates sufficient prejudice to Defendant.

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See In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994) (recognizing that the law

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presumes injury to the defendants from unreasonable delay).

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4.

The Public Policy Favoring Disposition of the Merits.

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The fourth factor weighs against dismissal. “We have often said that the

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public policy favoring disposition of cases on their merits strongly counsels against
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dismissal.” In re Phenylpropanolamine (PPA) Products Liability Litigation, 460

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F.3d 1217, 1228 (9th Cir. 2006) (citing Hernandez, 138 F.3d at 399). On the other

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hand, “this factor lends little support to a party whose responsibility it is to move a

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case toward disposition on the merits but whose conduct impedes progress in that

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direction.” Products Liability Litigation, 460 F.3d at 1228 (citations and quotation

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marks omitted). Thus, this factor alone does not preclude dismissal.

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5.

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The Availability of Less Drastic Alternatives.

The fifth factor supports dismissal. “Here the fact that the [Court] allowed

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[Plaintiff] an additional thirty days to amend his complaint . . . constituted an

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attempt at a less drastic sanction than outright dismissal.” Ferdik v. Bonzelet, 963

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F.2d 1258, 1262 (9th Cir. 1992). The Court also warned Plaintiff that the failure to

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comply with the Court’s Order to amend his Complaint would result in dismissal.

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See Products Liability Litigation, 460 F.3d at 1229 (“Warning that failure to obey a

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court order will result in dismissal can itself meet the ‘consideration of alternatives’

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requirement.”) (citing, inter alia, Ferdik, 963 F.2d at 1262 (“Moreover, our

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decisions also suggest that a district court’s warning to a party that his failure to

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obey the court’s order will result in dismissal can satisfy the ‘consideration of

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alternatives’ requirement.”)). Despite the Court’s warning, Plaintiff has failed to

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file an Amended Complaint.

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C.

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Four of the five factors support dismissal of the action for failure to comply

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Conclusion.

with an Order of the Court. In sum, dismissal without prejudice is warranted.

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ORDER

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It is ordered that the action is dismissed without prejudice. Fed. R. Civ. P.

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41(b).

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DATED: March 4, 2025

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PERCY ANDERSON
UNITED STATES DISTRICT JUDGE
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