Moreno v. Brettkelly et al

Filing 33

ORDER DISMISSING CLAIMS FOR FAILURE TO PROSECUTE AND FAILURE TO STATE A CLAIM; ORDER TO SHOW CAUSE REGARDING DISMISSAL WITH PREJUDICE. Signed by Judge William H. Orrick on 11/20/2020. (jmdS, COURT STAFF) (Filed on 11/20/2020)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOSE RIGOBERTO MORENO, Plaintiff, 8 v. 9 10 PERKINS WILL, INC., et al., Defendants. 11 United States District Court Northern District of California Case No. 20-cv-02082-WHO ORDER DISMISSING CLAIMS FOR FAILURE TO PROSECUTE AND FAILURE TO STATE A CLAIM; ORDER TO SHOW CAUSE REGARDING DISMISSAL WITH PREJUDICE 12 13 This is pro se plaintiff Jose Rigoberto Moreno’s third case filed in this District. His other 14 15 two cases, No. 19-cv-04206-EMC and No. 19-cv-04206-EMC, were dismissed for failure to 16 prosecute. This case must also be dismissed for similar reasons. After conducting an initial review of this case pursuant to 28 U.S.C. § 1915(e)(2), I granted 17 18 Moreno leave to amend his complaint and directed him to the Legal Help Desk. [Dkt. No. 15]. 19 On April 30, 2020, he filed an amended complaint, and on May 11, 2020, filed another amended 20 complaint that appears identical except that it refers to a compact disc of evidence submitted to the 21 court. [Dkt. Nos. 17, 20]. On July 16, 2020, after reviewing Moreno’s amended complaint 22 (“Complaint”) and the evidence that he submitted in connection with it, I found that Moreno’s 23 Complaint failed to state a claim on which relief may be granted and dismissed it. [Dkt. No. 31]. 24 However, because it appeared possible that he may be able to state a 42 U.S.C. § 1983 claim based 25 upon use of excessive force, I dismissed the Complaint without prejudice and gave Moreno the 26 opportunity to file an amended complaint by August 17, 2020. Id. I again directed him to the 27 Legal Help Desk to assist him if he chose to amend his complaint to bring a section 1983 claim. 28 Id. 1 The July 16, 2020 Order was both mailed to Moreno at his address of record and emailed 2 to him at his provided email address. On August 11, 2020, the mail was returned as undeliverable. 3 [Dkt. No. 32]. On September 22, 2020, the Clerk of the Court emailed another copy of the July 4 16, 2020 Order to Moreno at his provided email address. To date, Moreno has not filed an 5 amended complaint or otherwise responded to my Order. 6 It is well established that district courts have sua sponte authority to dismiss actions for 7 failure to prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Omstead v. Dell, 8 Inc., 594 F.3d 1081, 1084 (9th Cir. 2010). In deciding whether to dismiss for failure to prosecute 9 or comply with court orders, a district court must consider five factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 11 United States District Court Northern District of California 10 prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and 12 (5) the availability of less drastic sanctions.” Omstead, 594 F.3d at 1084 (quoting Henderson v. 13 Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). The Ninth Circuit has affirmed “a dismissal where 14 at least four factors support dismissal, . . . or where at least three factors strongly support 15 dismissal.” Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (internal quotation 16 marks and citation omitted). 17 The first two factors – public interest in expeditious resolution of litigation and the court’s 18 need to manage its docket – weigh in favor of dismissal. As described above, Moreno has been 19 provided ample time to prosecute his case, but he still has not filed an amended complaint or 20 otherwise responded to my previous order. See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 21 2002) (noting that failure to prosecute for “almost four months” weighs in favor of dismissal). 22 This failure to prosecute hinders my ability to move this case forward toward disposition and 23 suggests that Moreno does not intend to litigate this action diligently. Moreno’s “petition has 24 consumed some of the court’s time that could have been devoted to other cases on the docket.” 25 Galaza, 291 F.3d at 642. 26 The third factor – prejudice to defendant – also weighs in favor of dismissal. A rebuttable 27 presumption of prejudice to defendants arises when plaintiffs unreasonably delay prosecution of 28 an action. See In re Eisen, 31 F.3d 1447, 1452–53 (9th Cir. 1994). Nothing suggests such a 2 1 2 presumption is unwarranted here. The fourth factor – public policy in favor of deciding cases on the merits – ordinarily 3 weighs against dismissal. However, it is a plaintiff’s responsibility to move toward disposition at 4 a reasonable pace and avoid dilatory and evasive tactics. See Morris v. Morgan Stanley, 942 F.2d 5 648, 652 (9th Cir. 1991). Moreno has not discharged this responsibility despite multiple 6 opportunities to state a viable claim. While I am not deciding this case on the merits, I have 7 reviewed the Complaint and can neither identify a viable cause of action from the pleadings, nor 8 determine whether I would have jurisdiction if a viable claim does exist. Under these 9 circumstances, the policy favoring resolution of disputes on the merits does not outweigh 10 Moreno’s failure to file responsive documents within the time granted United States District Court Northern District of California 11 The fifth factor – availability of less drastic sanctions – also weighs in favor of dismissal. 12 Moreno had ample opportunity to amend his Complaint to state a viable claim but did not do so. 13 In both of my previous orders, I directed him to the Legal Help Desk to assist him in moving this 14 case forward. Although the July 16, 2020 Order was returned as undeliverable via mail, it was 15 emailed to him at his provided email address twice. He was granted sufficient time (four months) 16 in which to file an amended complaint. Without an amended complaint, the operative Complaint 17 is deficient for the reasons stated in my July 16, 2020 Order. 18 For the foregoing reasons, I find that the factors weigh in favor of dismissal. This action is 19 hereby DISMISSED for failure to prosecute and comply with court orders pursuant to Federal 20 Rule of Civil Procedure 41(b). All claims other than the Section 1983 claim are dismissed with 21 prejudice. Moreno is ORDERED TO SHOW CAUSE why the Section 1983 claim should not also 22 be dismissed with prejudice by filing a motion for leave to file an amended complaint with one 23 claim under Section 1983, and attaching the proposed amended complaint to the motion, no later 24 than December 21, 2020. If a response is filed, I will determine if a cause of action is plausibly 25 stated and decide whether to allow that claim to proceed or to dismiss it (with or without prejudice 26 as appropriate). If no response is filed, I will dismiss the Section 1983 claim with prejudice for 27 28 3 1 2 3 failure to state a claim as well as failure to comply with the orders of this court. IT IS SO ORDERED. Dated: November 20, 2020 4 5 William H. Orrick United States District Judge 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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