Anthony Vasquez v. Jesse Rubalcava et al
Filing
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MEMORANDUM OPINION AND ORDER DISMISSING ACTION FOR FAILURE TO STATE A CLAIM AND FAILURE TO PROSECUTE by Judge Dale S. Fischer. (twdb)
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, HEREBY CERTIFY THAT THIS DOCUMENT WAS SERVED Ill'
FIRST CLASS MAIL POSTAGE PREPAID, Tom COONS£l"f \e\.~ . .
(ell MRTltS) AT THEIR RESPECTIVE MOST RECENT ADDRESS OF
RECORD IN THIS ACTION ON THIS DATE.
DATEO:
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-'mEo-:SOUTHERNQIVlsi<5N--
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CLERK, U.S DISTRICT COURl
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DEPUTYCL~2
MAY - 4 2012
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l ~~NTR~TRICT OF CALIFORNIA
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DEPUTY
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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ANTHONY VASQUEZ,
Plaintiff,
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v.
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JESSE RUBALCAVA et al.,
Defendants.
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Case No. SACV 11-1968-DSF (JPR)
MEMORANDUM OPINION AND ORDER
DISMISSING ACTION FOR FAILURE
TO STATE A CLAIM AND FAILURE
TO PROSECUTE
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Plaintiff filed this pro se civil rights action on December
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30, 2011.
He subsequently was granted leave to proceed in forma
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pauperis.
On January 20, 2012, after screening the Complaint
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under 28 U.S.C.
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with leave to amend.
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First Amended Complaint.
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dismissed the FAC with leave to amend.
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Plaintiff that if he did not file a Second Amended Complaint by
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April 4, 2012, his lawsuit would be subject to dismissal for
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failure to prosecute.
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§
1915(e) (2), the Magistrate Judge dismissed it
On February 17, 2012, Plaintiff filed a
On March 7, 2012, the Magistrate Judge
She expressly warned
To date, Plaintiff has not filed a SAC.
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Courts may dismiss lawsuits that are not diligently
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prosecuted.
Link v. Wabash R.R. Co., 370 U.S. 626, 629-30, 82 S.
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Ct. 1386, 1388, 8 L. Ed. 2d 734 (1962); Carey v. King, 856 F.2d
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1439, 1441 (9th Cir. 1988)
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to dismiss a pro se plaintiff's action for failure to prosecute, a
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court must consider "(1) the public's interest in expeditious
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resolution of litigation;
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docket;
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public policy favoring disposition of cases on their merits; and
(per curiam).
In determining whether
(2) the court's need to manage its
(3) the risk of prejudice to the defendants;
(4) the
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(5) the availability of less drastic sanctions."
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at 1440.
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prejudice to the defendants that can be overcome only with an
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affirmative showing of just cause by the plaintiff.
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31 F.3d 1447, 1452-53 (9th Cir. 1994).
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Carey, 856 F.2d
Unreasonable delay creates a rebuttable presumption of
In re Eisen,
Here, the first, second, third, and fifth Carey factors
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militate in favor of dismissal.
As noted in the Magistrate
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Judge's previous orders, Plaintiff's claims concern events that
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happened several years ago and thus are already somewhat stale.
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Further delay would only make it more difficult for Defendants to
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mount a defense.
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drastic sanction the Court can take, as Plaintiff has not availed
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himself of the opportunity to file a SAC, even after being
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expressly warned that if he failed to do so his lawsuit might be
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dismissed.
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as it does in every case - the other factors together outweigh the
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public's interest in disposing of the case on its merits.
There also does not appear to be any less
Although the fourth factor weighs against dismissal -
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Accordingly, it is ORDERED that this action be dismissed
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because most of the First Amended Complaint fails to state a claim
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upon which relief might be granted (for the reasons stated in the
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Magistrate Judge's January 20 and March 7 Orders), and because
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Plaintiff has failed to prosecute his lawsuit.
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Dated: 5/3/12
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DALE S. FISCHER
U.S. District Judge
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