Opinion
Case No. 5:18-cv-02120-JLS-JC
03-06-2020
YSIDRO HERNANDEZ, Plaintiff, v. J. MICHAEL LEE, et al., Defendants.
MEMORANDUM OPINION AND ORDER DISMISSING ACTION
I. BACKGROUND AND SUMMARY
On October 3, 2018, plaintiff Ysidro Hernandez, who is in custody at the Chuckawalla Valley State Prison ("CVSP"), is proceeding pro se, and has been granted leave to proceed without prepayment of the filing fee ("IFP"), formally filed a Civil Rights Complaint ("Complaint" or "Comp.") pursuant to 42 U.S.C. § 1983 ("Section 1983") with attached exhibits ("Comp. Ex.") against a single named defendant, Dr. J. Michael Lee, CVSP Chief Medical Executive. The Complaint essentially alleged that defendant Lee violated plaintiff's constitutional right to be free from cruel and unusual punishment by denying plaintiff's request to have back surgery recommended by a neurosurgeon based on the results of magnetic resonance imaging ("MRI") of plaintiff's lumbar spine. (Comp. ¶ 15). Plaintiff sued defendant Lee in his individual and official capacities, and sought solely injunctive relief - the back surgery. (Comp. at 2, 9).
On January 19, 2020, the Court screened the Complaint, pursuant to Title 28, United States Code sections 1915(e)(2)(B) and 1915A and Title 42, United States Code section 1997e(c), notified plaintiff of multiple deficiencies therein, and dismissed it, and directed plaintiff, within twenty (20) days, to file a First Amended Complaint, a signed Notice of Dismissal, or a Notice of Intent to Stand on Complaint ("January Order"). The January Order further expressly cautioned plaintiff in bold-faced print that the failure timely to file a First Amended Complaint, a Notice of Dismissal, or a Notice of Intent to Stand on Complaint may be deemed plaintiff's admission that amendment is futile and may result in the dismissal of this action, with or without prejudice, on the grounds set forth in the January Order, on the ground that amendment is futile, for failure diligently to prosecute, and/or for failure to comply with the January Order.
Plaintiff's deadline to comply with the January Order has expired but to date, plaintiff has failed to file a First Amended Complaint, a Notice of Dismissal, or a Notice of Intent to Stand on Complaint. Nor has plaintiff sought an extension of such deadline or otherwise communicated with the Court since the issuance of the January Order.
II. DISCUSSION
Based upon the record and the applicable law, and as further discussed below, the Court dismisses this action due to plaintiff's failure to state a claim on which relief may be granted, failure to comply with the January Order, and failure diligently to prosecute.
First, as explained in detail in the January Order, the Complaint failed to state a viable Eighth Amendment claim against the defendant in either his individual or official capacity. The January Order explained in detail what plaintiff needed to do to cure the deficiencies in his pleading and granted plaintiff leave to file a First Amended Complaint to the extent he was able to cure such deficiencies. The January Order further cautioned plaintiff that the action may be dismissed if he failed timely to file a First Amended Complaint, a Notice of Dismissal, or a Notice of Intent to Stand on Complaint. Since plaintiff failed to file a First Amended Complaint despite having been given an opportunity to do so, the Court can only conclude that plaintiff is simply unable or unwilling to draft a complaint that states a viable claim for relief and deems such failure an admission that amendment is futile. See, e.g., Knapp v. Hogan, 738 F.3d 1106, 1110 (9th Cir. 2013) ("When a litigant knowingly and repeatedly refuses to conform his pleadings to the requirements of the Federal Rules, it is reasonable to conclude that the litigant simply cannot state a claim.") (emphasis in original), cert. denied, 574 U.S. 815 (2014). Accordingly, dismissal of the instant action based upon plaintiff's failure to state a claim is appropriate.
Second, dismissal is appropriate based upon plaintiff's failure to comply with the January Order and the failure diligently to prosecute. It is well-established that a district court may sua sponte dismiss an action where a plaintiff has failed to comply with a court order and/or unreasonably failed to prosecute. See Link v. Wabash Railroad Co., 370 U.S. 626, 629-33 (1962); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.), cert. denied, 506 U.S. 915 (1992); see also Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 2004) (sua sponte dismissal pursuant to Fed. R. Civ. P. 41(b) proper sanction in cases where a plaintiff is notified of deficiencies in complaint and is given "the opportunity to amend [the complaint] or be dismissed" but the plaintiff "[does] nothing") (citations omitted; emphasis in original); McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991) (district court may sua sponte dismiss action "only for an unreasonable failure to prosecute") (citations omitted). ///
In determining whether to dismiss an action for failure to prosecute or failure to comply with court orders, a district court must consider several factors, namely (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 alternatives. See In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994) (failure to prosecute); Ferdik, 963 F.2d at 1260-61 (failure to comply with court orders). Dismissal is appropriate "where at least four factors support dismissal . . . or where at least three factors 'strongly' support dismissal." Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citations omitted). Here, as at least the first three factors strongly support dismissal, the Court finds that plaintiff's unreasonable failure to prosecute his case and failure to comply with the January Order warrant dismissal.
Where a plaintiff is proceeding pro se, a court must first notify the plaintiff of the deficiencies in the complaint so that the plaintiff has an opportunity "to amend effectively." Ferdik, 963 F.2d at 1261 (citation omitted). A district judge may not dismiss an action for failure to comply with a court order or for unreasonable failure to prosecute if the initial decision to dismiss a complaint was erroneous. Yourish v. California Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (citing id.). Here, as noted above, plaintiff was notified of the deficiencies in the Complaint and afforded the opportunity to amend effectively. Further, the January Order was not erroneous. --------
III. ORDER
IT IS THEREFORE ORDERED that this action is dismissed and that the Clerk enter judgment accordingly.
IT IS SO ORDERED. DATED: March 6, 2020
/s/_________
HONORABLE JOSEPHINE L. STATON
UNITED STATES DISTRICT JUDGE