Green v. Alameda County et al

Filing 15

ORDER DISMISSING WITHOUT PREJUDICE Plaintiff's Action. The Clerk of the Court shall close the file. Signed by Magistrate Judge Laurel Beeler on 3/19/2013. (lblc2, COURT STAFF) (Filed on 3/19/2013)

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UNITED STATES DISTRICT COURT

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Northern District of California

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San Francisco Division
MARCELLUS GREEN,

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For the Northern District of California

UNITED STATES DISTRICT COURT

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Plaintiff,
v.

No. C 12-05929 LB
ORDER DISMISSING WITHOUT
PREJUDICE PLAINTIFF’S ACTION

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ALAMEDA COUNTY; GREGORY
AHEARN in his capacity as Sheriff for
Alameda County; DOES 1-25, individually
and in their capacities as Deputy Sheriffs for
Alameda County,

[Re: ECF No. 13]

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Defendants.
_____________________________________/
Plaintiff Marcellus Green filed a complaint against, according to the caption, defendants

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Alameda County, Alameda County Sheriff Gregory Ahern (in his official capacity), and Does 1-25

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(who allegedly are deputy sheriffs in Alameda County). Complaint, ECF No. 1 at 1.1 Alameda

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County and Sheriff Ahern moved to dismiss Mr. Green’s complaint, to strike one of Mr. Green’s

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causes of action and one of his requests for relief, and, if the complaint was not dismissed, for a

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more definite statement. Motion, ECF No. 5. On February 25, 2013, the court granted Defendants’

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motion, dismissed without prejudice Mr. Green’s complaint, and allowed Mr. Green leave to file a

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First Amended Complaint no later than March 14, 2013. 2/25/2013 Order, ECF No. 13. Mr. Green

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has yet to file a First Amended Complaint, and it is now past the court’s deadline to do so. And the

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Citations are to the Electronic Case File (“ECF”) with pin cites to the electronicallygenerated page numbers at the top of the document.
C 12-05929 LB
ORDER

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court has received no indication that Mr. Green intends to prosecute this action. See generally

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Docket.

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A court may dismiss an action based on a party’s failure to prosecute an action. Ferdik v.

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Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992). In determining whether to dismiss a claim for

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failure to prosecute or failure to comply with a court order, the court weighs the following factors:

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

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docket; (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic

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alternatives; and (5) the public policy favoring disposition of cases on their merits. Pagtalunan v.

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Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik, 963 F.2d at 1260-61); Ghazali v. Moran,

precedent before the judge can do anything.’” In re Phenylpropanolamine (PPA) Products Liability

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For the Northern District of California

46 F.3d 52, 53 (9th Cir. 1995). These factors are a guide and “are ‘not a series of conditions

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UNITED STATES DISTRICT COURT

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Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Valley Eng’rs Inc. v. Elec. Eng’g Co., 158

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F.3d 1051, 1057 (9th Cir. 1998)). Dismissal is appropriate “where at least four factors support

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dismissal, . . . . or where at least three factors ‘strongly’ support dismissal.” Hernandez v. City of El

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Monte, 138 F.3d 393, 399 (9th Cir. 1998) (quoting Ferdik, 963 F.2d at 1263).

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Here, four factors favor support dismissal. Mr. Green has not filed a First Amended Complaint,

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even though it already past the court’s deadline for doing so. This certainly is not “expeditious

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litigation,” and the court must keep the cases on its docket moving. There also is no risk of

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prejudice to the defendants, and the court already tried to move this case along by issuing an order

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that clearly explained to Mr. Green the deficiencies in his complaint and gave him leave to file an

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amended one.

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In sum, the court concludes that four of the five relevant factors weigh in favor of dismissal.

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Accordingly, the court DISMISSES WITHOUT PREJUDICE Mr. Green’s action for failure to

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prosecute. The Clerk of the Court shall close the file.

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IT IS SO ORDERED.
Dated: March 19, 2013
_______________________________
LAUREL BEELER
United States Magistrate Judge

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C 12-05929 LB
ORDER

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