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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOSE RIGOBERTO MORENO,
Plaintiff,

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v.

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PERKINS WILL, INC., et al.,
Defendants.

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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

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This is pro se plaintiff Jose Rigoberto Moreno’s third case filed in this District. His other

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two cases, No. 19-cv-04206-EMC and No. 19-cv-04206-EMC, were dismissed for failure to

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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

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Moreno leave to amend his complaint and directed him to the Legal Help Desk. [Dkt. No. 15].

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On April 30, 2020, he filed an amended complaint, and on May 11, 2020, filed another amended

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complaint that appears identical except that it refers to a compact disc of evidence submitted to the

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court. [Dkt. Nos. 17, 20]. On July 16, 2020, after reviewing Moreno’s amended complaint

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(“Complaint”) and the evidence that he submitted in connection with it, I found that Moreno’s

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Complaint failed to state a claim on which relief may be granted and dismissed it. [Dkt. No. 31].

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However, because it appeared possible that he may be able to state a 42 U.S.C. § 1983 claim based

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upon use of excessive force, I dismissed the Complaint without prejudice and gave Moreno the

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opportunity to file an amended complaint by August 17, 2020. Id. I again directed him to the

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Legal Help Desk to assist him if he chose to amend his complaint to bring a section 1983 claim.

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Id.

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The July 16, 2020 Order was both mailed to Moreno at his address of record and emailed

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to him at his provided email address. On August 11, 2020, the mail was returned as undeliverable.

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[Dkt. No. 32]. On September 22, 2020, the Clerk of the Court emailed another copy of the July

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16, 2020 Order to Moreno at his provided email address. To date, Moreno has not filed an

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amended complaint or otherwise responded to my Order.

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It is well established that district courts have sua sponte authority to dismiss actions for

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failure to prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Omstead v. Dell,

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Inc., 594 F.3d 1081, 1084 (9th Cir. 2010). In deciding whether to dismiss for failure to prosecute

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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

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United States District Court
Northern District of California

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prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and

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(5) the availability of less drastic sanctions.” Omstead, 594 F.3d at 1084 (quoting Henderson v.

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Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). The Ninth Circuit has affirmed “a dismissal where

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at least four factors support dismissal, . . . or where at least three factors strongly support

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dismissal.” Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (internal quotation

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marks and citation omitted).

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The first two factors – public interest in expeditious resolution of litigation and the court’s

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need to manage its docket – weigh in favor of dismissal. As described above, Moreno has been

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provided ample time to prosecute his case, but he still has not filed an amended complaint or

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otherwise responded to my previous order. See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir.

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2002) (noting that failure to prosecute for “almost four months” weighs in favor of dismissal).

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This failure to prosecute hinders my ability to move this case forward toward disposition and

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suggests that Moreno does not intend to litigate this action diligently. Moreno’s “petition has

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consumed some of the court’s time that could have been devoted to other cases on the docket.”

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Galaza, 291 F.3d at 642.

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The third factor – prejudice to defendant – also weighs in favor of dismissal. A rebuttable

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presumption of prejudice to defendants arises when plaintiffs unreasonably delay prosecution of

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an action. See In re Eisen, 31 F.3d 1447, 1452–53 (9th Cir. 1994). Nothing suggests such a
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presumption is unwarranted here.
The fourth factor – public policy in favor of deciding cases on the merits – ordinarily

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weighs against dismissal. However, it is a plaintiff’s responsibility to move toward disposition at

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a reasonable pace and avoid dilatory and evasive tactics. See Morris v. Morgan Stanley, 942 F.2d

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648, 652 (9th Cir. 1991). Moreno has not discharged this responsibility despite multiple

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opportunities to state a viable claim. While I am not deciding this case on the merits, I have

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reviewed the Complaint and can neither identify a viable cause of action from the pleadings, nor

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determine whether I would have jurisdiction if a viable claim does exist. Under these

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circumstances, the policy favoring resolution of disputes on the merits does not outweigh

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Moreno’s failure to file responsive documents within the time granted

United States District Court
Northern District of California

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The fifth factor – availability of less drastic sanctions – also weighs in favor of dismissal.

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Moreno had ample opportunity to amend his Complaint to state a viable claim but did not do so.

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In both of my previous orders, I directed him to the Legal Help Desk to assist him in moving this

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case forward. Although the July 16, 2020 Order was returned as undeliverable via mail, it was

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emailed to him at his provided email address twice. He was granted sufficient time (four months)

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in which to file an amended complaint. Without an amended complaint, the operative Complaint

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is deficient for the reasons stated in my July 16, 2020 Order.

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For the foregoing reasons, I find that the factors weigh in favor of dismissal. This action is

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hereby DISMISSED for failure to prosecute and comply with court orders pursuant to Federal

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Rule of Civil Procedure 41(b). All claims other than the Section 1983 claim are dismissed with

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prejudice. Moreno is ORDERED TO SHOW CAUSE why the Section 1983 claim should not also

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be dismissed with prejudice by filing a motion for leave to file an amended complaint with one

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claim under Section 1983, and attaching the proposed amended complaint to the motion, no later

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than December 21, 2020. If a response is filed, I will determine if a cause of action is plausibly

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stated and decide whether to allow that claim to proceed or to dismiss it (with or without prejudice

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as appropriate). If no response is filed, I will dismiss the Section 1983 claim with prejudice for

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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

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William H. Orrick
United States District Judge

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United States District Court
Northern District of California

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