Simon v. City of Berkeley, Berkeley Mental Health Mobil Crisis Team et al
Filing
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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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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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JONA SIMON,
Plaintiff,
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United States District Court
Northern District of California
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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.
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Pro se plaintiff Jona Simon filed this 42 U.S.C. section 1983 action alleging that
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defendants City of Berkeley Mental Health Mobil Crisis Team (“City of Berkeley”), Alta Bates
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Summit Medical Center (“ABSMC”), and Alameda Health System (“AHS”) (sued herein as John
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George Psychiatric Hospital) violated his civil rights protected by the Fourth, Fourteenth, and
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Second Amendments. Dkt. No. 1. On November 5, 2020, I granted defendants ABSMC and
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AHS’s motions to dismiss the original Complaint, with leave to amend by November 25, 2020.
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Dkt. No. 25. On November 13, 2020, the City of Berkeley moved to dismiss the original
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Complaint. Dkt. No. 46. On December 2, 2020, I granted Simon’s request for extension to file an
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Amended Complaint by December 24, 2020 and denied as moot the City of Berkeley’s motion to
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dismiss the original Complaint in light of the forthcoming Amended Complaint. Dkt. No. 50. I
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warned Simon that if he “fails to file an Amended Complaint by December 24, 2020, this case will
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be dismissed for failure to prosecute.” Id. Simon has not filed an Amended Complaint or
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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
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expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of
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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)).
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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, Simon was given an
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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
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United States District Court
Northern District of California
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filed an Amended Complaint or otherwise responded to my order. Without an Amended
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Complaint, the operative Complaint is deficient for the reasons stated in my November 5, 2020
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order. This failure to prosecute hinders my ability to move this case forward toward disposition
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and suggests that Simon does not intend to litigate this action diligently.
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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.
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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). Simon has not discharged this responsibility despite ample
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opportunity to file an Amended Complaint. Under these circumstances, the policy favoring
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resolution of disputes on the merits does not outweigh Simon’s failure to file an Amended
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Complaint within the time granted.
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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
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hereby DISMISSED without prejudice for failure to prosecute and comply with court orders
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pursuant to Federal Rule of Civil Procedure 41(b).
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IT IS SO ORDERED.
Dated: January 7, 2021
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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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