Brown v. California Department of Rehabilitation

Filing 8

ORDER DISMISSING CASE WITHOUT PREJUDICE FOR FAILURE TO PROSECUTE, ***Civil Case Terminated. Signed by Judge Maria-Elena James on 2/24/2014. (cdnS, COURT STAFF) (Filed on 2/24/2014) (Additional attachment(s) added on 2/24/2014: # 1 Certificate/Proof of Service) (cdnS, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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AUGUSTUS M. BROWN,

Case No. 13-cv-05730-MEJ

Plaintiff,
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v.
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CALIFORNIA DEPARTMENT OF
REHABILITATION,
Defendant.

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United States District Court
Northern District of California

ORDER DISMISSING CASE WITHOUT
PREJUDICE FOR FAILURE TO
PROSECUTE

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BACKGROUND

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On December 11, 2013, Plaintiff Augustus M. Brown filed a Complaint and an

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Application to Proceed In Forma Pauperis. Plaintiff has consented to the jurisdiction of a United

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States Magistrate Judge pursuant to 28 U.S.C. § 636(c). On December 30, 2014, the Court

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granted Plaintiff’s in forma pauperis application and dismissed the Complaint with leave to

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amend. Dkt. No. 6. The Court informed Plaintiff that it was unable to determine whether he

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stated any claims upon which relief can be granted because, although he stated at least 11 causes

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of action on the caption page, the body of the Complaint is mostly one long paragraph without any

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connection between the alleged facts and causes of action. Id. The Court ordered Plaintiff to file

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any amended complaint by January 30, 2014, and warned him that failure to file an amended

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complaint by this deadline would result in the dismissal of this case with prejudice. Id. The Court

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directed the Clerk of Court to close the file if Plaintiff failed to file an amended complaint by

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January 30.

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As of February 3, 2014, Plaintiff had failed to file an amended complaint. Accordingly,

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the Court ordered him to show cause why this case should not be dismissed for failure to prosecute

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and failure to comply with court deadlines. Dkt. No. 7. The Court provided notice to Plaintiff that

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it may dismiss the case if he failed to respond by the deadline. As of the date of this Order,

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Plaintiff has not responded to the order to show cause and has not filed an amended complaint.

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Based on this procedural history, the Court finds it appropriate to dismiss this case pursuant to

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Federal Rule of Civil Procedure 41(b).
LEGAL STANDARD

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Under Rule 41(b), “the district court may dismiss an action for failure to comply with any

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order of the court.” Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992); see also Oliva v.

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Sullivan, 958 F.2d 272, 273-74 (9th Cir. 1992) (district court may dismiss sua sponte for failure to

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meet court deadline). “[T]he district court must weigh the following factors in determining
whether a Rule 41(b) dismissal is warranted: ‘(1) the public’s interest in expeditious resolution of

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United States District Court
Northern District of California

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litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4)

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

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drastic sanctions.’” Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting

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Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). “These factors are ‘not a series of

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conditions precedent before the judge can do anything,’ but a ‘way for a district judge to think

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about what to do.’” In re Phenylpropanolamine (PPA) Products Liab. Litig. (“In re PPA”), 460

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F.3d 1217, 1226 (9th Cir. 2006) (quoting Valley Eng’rs Inc. v. Elec. Eng’g Co., 158 F.3d 1051,

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1057 (9th Cir. 1998)). Dismissal is appropriate “where at least four factors support dismissal . . .

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or where at least three factors ‘strongly’ support dismissal.” Hernandez v. City of El Monte, 138

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F.3d 393, 399 (9th Cir. 1998).

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DISCUSSION
Here, the Court finds that the Henderson factors support dismissal. First, “the public’s

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interest in expeditious resolution of litigation always favors dismissal.” Yourish v. Cal. Amplifier,

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191 F.3d 983, 990 (9th Cir. 1999). Plaintiff has delayed adjudication of the claims in this case by

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failing to file an amended complaint and failing to respond to this Court’s show cause order.

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Second, the Court’s need to manage its docket also weighs in favor of dismissal. Non-

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compliance with procedural rules and the Court’s orders wastes “valuable time that [the Court]

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could have devoted to other . . . criminal and civil cases on its docket.” Ferdik, 963 F.2d at 1261.
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As for the third Henderson factor, the mere pendency of a lawsuit cannot constitute

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sufficient prejudice to require dismissal. Yourish, 191 F.3d at 991. However, “prejudice . . . may .

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. . consist of costs or burdens of litigation.” In re PPA, 460 F.3d at 1228. Moreover, “a

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presumption of prejudice arises from a plaintiff’s unexplained failure to prosecute.” Laurino v.

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Syringa Gen. Hosp., 279 F.3d 750, 753 (9th Cir. 2002). A plaintiff has the burden of

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demonstrating a non-frivolous reason for failing to meet a court deadline. Id.; see also Yourish,

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191 F.3d at 991. Here, Plaintiff has failed to respond to the Court’s Order to Show Cause and has

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not otherwise offered an explanation for the failure to file an amended complaint. Therefore, the

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Court concludes that the third Henderson factor also supports dismissal.
The fourth Henderson factor normally weighs strongly against dismissal. See, e.g.,

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United States District Court
Northern District of California

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Hernandez, 138 F.3d at 399. “At the same time, a case that is stalled or unreasonably delayed by a

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party’s failure to comply with deadlines . . . cannot move forward toward resolution on the

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merits.” In re PPA, 460 F.3d at 1228. The Ninth Circuit has “recognized that this factor ‘lends

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little support’ to a party whose responsibility it is to move a case toward disposition on the merits

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but whose conduct impedes progress in that direction.” Id. (quoting In re Exxon Valdez, 102 F.3d

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429, 433 (9th Cir. 1996)). Thus, if the fourth Henderson factor weighs against dismissal here, it

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does so very weakly.

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Finally, the Court has already attempted less drastic sanctions, without success, and

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therefore determines that trying them again would be inadequate or inappropriate. “Though there

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are a wide variety of sanctions short of dismissal available, the district court need not exhaust

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them all before finally dismissing a case.” Nevijel v. N. Coast Life Ins. Co., 651 F.2d 671, 674

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(9th Cir. 1981). Here, the Court already attempted the lesser sanction of issuing an Order to Show

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Cause and giving Plaintiff an opportunity to explain the failure to file an amended complaint. As

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Plaintiff failed to respond, ordering him to respond again is likely to be futile. See, e.g., Gleason

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v. World Sav. Bank, FSB, 2013 WL 3927799, at *2 (N.D. Cal. July 26, 2013) (finding dismissal

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under Rule 41(b) appropriate where the court previously attempted the lesser sanction of issuing

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an Order to Show Cause and giving the plaintiff an additional opportunity to re-plead). Further,

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the Order to Show Cause warned Plaintiff of the risk of dismissal; thus Plaintiff cannot maintain
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that the Court has failed in its “obligation to warn the plaintiff that dismissal is imminent.” Oliva,

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958 F.2d at 274. Thus, the Court finds that the fifth factor also weighs in favor of dismissal.
CONCLUSION

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Based on the analysis above, the Court finds that at least four of the five Henderson factors

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weigh in favor of dismissal. Plaintiff failed to file an amended complaint or respond to the order

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to show cause. Thus, Plaintiff has failed to prosecute this case and dismissal is appropriate.

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However, a less drastic alternative is to dismiss without prejudice. See Ferdik, 963 F.2d at 1262.

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Dismissal will minimize prejudice to Defendants, but dismissing the case without prejudice will

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preserve Plaintiff’s ability to seek relief. Thus, “[i]n an abundance—perhaps overabundance—of
caution,” the Court finds that dismissal without prejudice is appropriate. Faulkner v. ADT

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United States District Court
Northern District of California

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Security Servs., Inc., 2013 WL 174368, at *4 (9th Cir. Jan. 17, 2013) (remanding to the district

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court in order to consider whether dismissal should have been without prejudice).

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Accordingly, the Court DISMISSES this case WITHOUT PREJUDICE for failure to
prosecute and failure to comply with the Court’s deadlines and orders.
IT IS SO ORDERED.

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Dated: February 24, 2014
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

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