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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 Northern District of California 10 San Francisco Division MARCELLUS GREEN, 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 Plaintiff, v. No. C 12-05929 LB ORDER DISMISSING WITHOUT PREJUDICE PLAINTIFF’S ACTION 13 14 15 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] 16 17 18 Defendants. _____________________________________/ Plaintiff Marcellus Green filed a complaint against, according to the caption, defendants 19 Alameda County, Alameda County Sheriff Gregory Ahern (in his official capacity), and Does 1-25 20 (who allegedly are deputy sheriffs in Alameda County). Complaint, ECF No. 1 at 1.1 Alameda 21 County and Sheriff Ahern moved to dismiss Mr. Green’s complaint, to strike one of Mr. Green’s 22 causes of action and one of his requests for relief, and, if the complaint was not dismissed, for a 23 more definite statement. Motion, ECF No. 5. On February 25, 2013, the court granted Defendants’ 24 motion, dismissed without prejudice Mr. Green’s complaint, and allowed Mr. Green leave to file a 25 First Amended Complaint no later than March 14, 2013. 2/25/2013 Order, ECF No. 13. Mr. Green 26 has yet to file a First Amended Complaint, and it is now past the court’s deadline to do so. And the 27 28 1 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 1 court has received no indication that Mr. Green intends to prosecute this action. See generally 2 Docket. 3 A court may dismiss an action based on a party’s failure to prosecute an action. Ferdik v. 4 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992). In determining whether to dismiss a claim for 5 failure to prosecute or failure to comply with a court order, the court weighs the following factors: 6 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its 7 docket; (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic 8 alternatives; and (5) the public policy favoring disposition of cases on their merits. Pagtalunan v. 9 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 12 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 11 UNITED STATES DISTRICT COURT 10 Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Valley Eng’rs Inc. v. Elec. Eng’g Co., 158 13 F.3d 1051, 1057 (9th Cir. 1998)). Dismissal is appropriate “where at least four factors support 14 dismissal, . . . . or where at least three factors ‘strongly’ support dismissal.” Hernandez v. City of El 15 Monte, 138 F.3d 393, 399 (9th Cir. 1998) (quoting Ferdik, 963 F.2d at 1263). 16 Here, four factors favor support dismissal. Mr. Green has not filed a First Amended Complaint, 17 even though it already past the court’s deadline for doing so. This certainly is not “expeditious 18 litigation,” and the court must keep the cases on its docket moving. There also is no risk of 19 prejudice to the defendants, and the court already tried to move this case along by issuing an order 20 that clearly explained to Mr. Green the deficiencies in his complaint and gave him leave to file an 21 amended one. 22 In sum, the court concludes that four of the five relevant factors weigh in favor of dismissal. 23 Accordingly, the court DISMISSES WITHOUT PREJUDICE Mr. Green’s action for failure to 24 prosecute. The Clerk of the Court shall close the file. 25 26 IT IS SO ORDERED. Dated: March 19, 2013 _______________________________ LAUREL BEELER United States Magistrate Judge 27 28 C 12-05929 LB ORDER 2

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