Opinion
3:22-cv-00072-JMK
02-15-2023
MICHAEL JOSEPH JOHNSON, Plaintiff, v. JOHN DOE, et al., Defendants.
ORDER OF DISMISSAL & NOTICE OF STRIKE
JOSHUA M. KINDRED UNITED STATES DISTRICT JUDGE
I. Background
On March 31, 2022, Michael Joseph Johnson, a self-represented prisoner (“Plaintiff”), filed a Prisoner's Complaint under the Civil Rights Act, 42 U.S.C. § 1983 (“Complaint”), a civil cover sheet, and a Prisoner's Application to Waive Prepayment of the Filing Fee.The Court screened theComplaint, found it deficient, but granted leave to amend the Complaint or provide the Court with a Notice of Voluntary Dismissal by August 19, 2022. On July 29, 2022, he filed a Request for Appointed Attorney and an Extension of Time to amend his First Amended Complaint. On January 3, 2023, this Court denied Mr. Johnson's request for counsel without prejudice, but granted leave to file a Second Amended Complaint or a Notice of Voluntary Dismissal. The Court warned Mr. Johnson that failure to file either with the Court by February 3, 2023, would result in a “strike” against Mr. Johnson under § 1915(g).
Dockets 1-3. The Court granted the Application to Waive Prepayment of the Filing Fee. See Docket 5.
Docket 5.
Docket 6.
See Docket 7. Mr. Johnson filed a Notice of Change of Address on August 10, 2022. See Docket 8.
Docket 10.
II. Discussion
Rule 41(b) of Federal Rules of Civil Procedure permits dismissal due to a plaintiff's failure to prosecute or comply with a court order. In deciding whether to dismiss on this basis, a district court considers 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 prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.”
Hernandez v. City of El Monte, 138 F.3d 393, 399 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986).
Here, the first two factors-the public's interest in expeditious resolution of litigation and the Court's need to manage its docket-weigh in favor of dismissal. Plaintiff's failure to file a Second Amended Complaint or Notice of Voluntary Dismissal within the specified timeline suggests Plaintiff does not intend to litigate this action diligently. Further, a presumption of prejudice to a defendant arises when the plaintiff unreasonably delays prosecution of an action. Because Plaintiff has not offered any justifiable reason for failing to meet the Court's deadline, the third factor also favors dismissal.
Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991) (a plaintiff has the burden “to move toward . . . disposition at a reasonable pace, and to refrain from dilatory and evasive tactics”).
Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976).
See, e.g., Hernandez v. City of El Monte, 138 F.3d 393, 401 (9th Cir.1998) (reiterating that the burden of production shifts to the defendant to show at least some actual prejudice only after the plaintiff has given a non-frivolous excuse for delay).
The fourth factor usually weighs against dismissal because public policy favors disposition on the merits.However, “this factor lends little support to a party whose responsibility it is to move a case toward disposition on the merits but whose conduct impedes progress in that direction,”which is the case here. Thus, although this factor typically weighs against dismissal, it does not overcome Mr. Johnson's failure to comply with the Court's order.
Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002).
In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citing In re Exxon Valdez, 102 F.3d 429, 433 (9th Cir. 1996)).
The fifth factor is comprised of three subparts, which include “whether the court has considered lesser sanctions, whether it tried them, and whether it warned the [uncooperative] party about the possibility of case-dispositive sanctions.”The Court's Order at Docket 10 accorded Plaintiff an opportunity to file a Second Amended Complaint and warned him of the potential dismissal of this action in the event of noncompliance.
Conn. Gen. Life Ins., 482 F.3d at 1096 (internal citation omitted).
Based on the foregoing, this case must be dismissed. Dismissal without prejudice “minimizes prejudice to a defendant and preserves a plaintiff's ability to seek relief.”The Court finds no other lesser sanction to be satisfactory or effective in this case.Therefore, this case is dismissed, without prejudice, for failure to prosecute this action.
Alli v. City and County of San Francisco, 2022 WL 3099222 (N.D. Cal. 2022) (internal citations omitted).
See, e.g., Henderson, 779 F.2d at 1424 (a district court need not exhaust every sanction short of dismissal before finally dismissing a case but must explore possible and meaningful alternatives) (internal citation omitted); Gleason v. World Sav. Bank, FSB, 2013 WL 3927799, at *2 (N.D. Cal. July 26, 2013) (finding dismissal under Rule 41(b) appropriate where the court previously attempted the lesser sanction of issuing an order to show cause and giving the plaintiff an additional opportunity to re-plead).
Although Mr. Johnson indicated to the Court that he is no longer incarcerated by virtue of the Notice of Change of Address, filed on August 10, 2022, Mr. Johnson was a prisoner at the time he initiated this action.Therefore, this dismissal will count as a “strike” against Mr. Johnson under § 1915(g).After three strikes, Mr. Johnson will be unable to file lawsuits under in forma pauperis status, unless he demonstrates “imminent danger of serious physical injury.”
Docket 8 at 1. See O'Neal v. Price, 531 F.3d 1146, 1152 (9th Cir. 2008) (A plaintiff has “brought” an action for purposes of § 1915(g) when he or she “submits a complaint.”).
Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017) (Even “when (1) a district court dismisses a complaint on the ground that it fails to state a claim, (2) the court grants leave to amend, and (3) the plaintiff then fails to file an amended complaint, the dismissal counts as a strike under § 1915(g).”).
IT IS THEREFORE ORDERED:
1. This action is DISMISSED WITHOUT PREJUDICE.
2. All pending motions are DENIED AS MOOT.
3. The Clerk of Court shall issue a final judgment.