Simon v. City of Berkeley, Berkeley Mental Health Mobil Crisis Team et al

Filing 52

ORDER DISMISSING CASE FOR FAILURE TO PROSECUTE. Signed by Judge William H. Orrick on 1/7/2021. (jmdS, COURT STAFF) (Filed on 1/7/2021)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 JONA SIMON, Plaintiff, 8 9 10 United States District Court Northern District of California 11 12 Case No. 20-cv-02173-WHO ORDER DISMISSING CASE FOR FAILURE TO PROSECUTE v. CITY OF BERKELEY, BERKELEY MENTAL HEALTH MOBIL CRISIS TEAM, et al., Re: Dkt. No. 50 Defendants. 13 14 Pro se plaintiff Jona Simon filed this 42 U.S.C. section 1983 action alleging that 15 defendants City of Berkeley Mental Health Mobil Crisis Team (“City of Berkeley”), Alta Bates 16 Summit Medical Center (“ABSMC”), and Alameda Health System (“AHS”) (sued herein as John 17 George Psychiatric Hospital) violated his civil rights protected by the Fourth, Fourteenth, and 18 Second Amendments. Dkt. No. 1. On November 5, 2020, I granted defendants ABSMC and 19 AHS’s motions to dismiss the original Complaint, with leave to amend by November 25, 2020. 20 Dkt. No. 25. On November 13, 2020, the City of Berkeley moved to dismiss the original 21 Complaint. Dkt. No. 46. On December 2, 2020, I granted Simon’s request for extension to file an 22 Amended Complaint by December 24, 2020 and denied as moot the City of Berkeley’s motion to 23 dismiss the original Complaint in light of the forthcoming Amended Complaint. Dkt. No. 50. I 24 warned Simon that if he “fails to file an Amended Complaint by December 24, 2020, this case will 25 be dismissed for failure to prosecute.” Id. Simon has not filed an Amended Complaint or 26 otherwise responded to my order. 27 It is well established that district courts have sua sponte authority to dismiss actions for 28 failure to prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Omstead v. Dell, 1 Inc., 594 F.3d 1081, 1084 (9th Cir. 2010). In deciding whether to dismiss for failure to prosecute 2 or comply with court orders, a district court must consider five factors: “(1) the public’s interest in 3 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 4 prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and 5 (5) the availability of less drastic sanctions.” Omstead, 594 F.3d at 1084 (quoting Henderson v. 6 Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). 7 The first two factors – public interest in expeditious resolution of litigation and the court’s 8 need to manage its docket – weigh in favor of dismissal. As described above, Simon was given an 9 opportunity to file an Amended Complaint and failed to timely do so. I extended his deadline to file an Amended Complaint from November 25 to December 24, 2020, but Simon still has not 11 United States District Court Northern District of California 10 filed an Amended Complaint or otherwise responded to my order. Without an Amended 12 Complaint, the operative Complaint is deficient for the reasons stated in my November 5, 2020 13 order. This failure to prosecute hinders my ability to move this case forward toward disposition 14 and suggests that Simon does not intend to litigate this action diligently. 15 The third factor – prejudice to defendant – also weighs in favor of dismissal. A rebuttable 16 presumption of prejudice to defendants arises when plaintiffs unreasonably delay prosecution of 17 an action. See In re Eisen, 31 F.3d 1447, 1452–53 (9th Cir. 1994). Nothing suggests such a 18 presumption is unwarranted here. 19 The fourth factor – public policy in favor of deciding cases on the merits – ordinarily 20 weighs against dismissal. However, it is a plaintiff’s responsibility to move toward disposition at 21 a reasonable pace and avoid dilatory and evasive tactics. See Morris v. Morgan Stanley, 942 F.2d 22 648, 652 (9th Cir. 1991). Simon has not discharged this responsibility despite ample 23 opportunity to file an Amended Complaint. Under these circumstances, the policy favoring 24 resolution of disputes on the merits does not outweigh Simon’s failure to file an Amended 25 Complaint within the time granted. 26 27 28 The fifth factor – availability of less drastic sanctions – also weighs in favor of dismissal. Simon had the ample opportunity to file an Amended Complaint but did not do so. For the foregoing reasons, I find that the factors weigh in favor of dismissal. This action is 2 1 hereby DISMISSED without prejudice for failure to prosecute and comply with court orders 2 pursuant to Federal Rule of Civil Procedure 41(b). 3 4 IT IS SO ORDERED. Dated: January 7, 2021 5 6 William H. Orrick United States District Judge 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 3

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