Opinion
Fernando Miguel Rodriguez, also known as Ferando Rodriguez, Plaintiff, Pro se, Buena Park, CA.
MEMORANDUM AND ORDER DISMISSING ACTION WITH PREJUDICE FOR LACK OF PROSECUTION AND FAILURE TO COMPLY WITH COURT ORDER
HON. VALERIE BAKER FAIRBANK, UNITED STATES DISTRICT JUDGE.
This is a pro se civil rights action filed by Plaintiff Fernando Miguel Rodriguez (" Plaintiff"). Plaintiff, who previously was incarcerated at the Los Angeles County Jail, commenced this action by lodging a complaint on October 15, 2014. On January 9, 2015, the Court issued an order dismissing the complaint with leave to amend. Plaintiff failed to file an amended complaint, or respond to the Court's Order. Thus, on February 17, 2015, the Court issued an Order to Show Cause as to why this action should not be dismissed for failure to prosecute. Plaintiff has still not filed an amended complaint, or explained his failure to do so. Thus, this action will be dismissed with prejudice for failure to prosecute.
I .
BACKGROUND
Plaintiff Fernando Miguel Rodrigez, proceeding pro se, commenced this civil rights action on October 15, 2014 by lodging a complaint pursuant to 42 U.S.C. § 1983 (" Complaint"). ECF Docket No. (" Dkt.") 1. On October 21, 2014, Plaintiff's request to proceed in forma pauperis was granted and the Complaint was filed. Dkts. 3, 6. The Complaint named a single defendant, Los Angeles County Jail Medical Staff (" Defendant"). Dkt. 6 at 3. Plaintiff alleged Defendant Los Angeles County Jail Medical Staff had been deliberately indifferent to his medical needs by failing to provide him with treatment for asthma and a torn rotator cup in his right shoulder. Id. at 5.
On October 21, 2014, the Court issued an order directing service of process by the United States Marshal and directing Plaintiff to complete Form USM-285 providing the name and address for the defendant to be served. Dkts. 4, 5.
On November 5, 2014, Plaintiff filed a Notice of Submission of Service Documents to the Clerk of Court listing the defendant as " Los Angeles County Medical Staff." Dkt. 9.
On December 23, 2014, the Summons directed to the Defendant was returned as " unexecuted." Dkt. 16. The notation in the " remarks" sections stated, " per civil litigation at the LASD, service cannot be accepted as it is listed on the federal order. There is no such entity as the 'Los Angeles County Jail Medical Staff, ' therefore it will not be accepted." Id. at 1.
Thus, on January 9, 2015, the Court issued an order dismissing the Complaint with leave to amend. Dkt. 18. In the Order, the Court advised Plaintiff that the original Complaint could not be served without additional information identifying the defendant. Id. at 2. The Court directed Plaintiff to file an amended complaint with " (1) specific identifying information regarding the defendant(s) against whom he wishes to proceed, and (2) facts sufficient to state a claim against each defendant(s) against whom he wishes to proceed." Id. The Court ordered Plaintiff to file a first amended complaint containing such information no later than January 30, 2015. Id. at 5.
On January 21, 2015, Plaintiff filed a Notice of Change of Address informing the Court he had been released from custody and providing the Court with a new address of " 7375 9th Street, #114, Buena Park, California 90621." Dkt. 19.
The Court notes that no mail sent by the Court to Plaintiff has ever been returned as " undeliverable."
On February 17, 2015, the Court issued an Order to Show Cause as to why this action should not be dismissed for failure to comply with court orders and/or failure to prosecute. Dkt. 23. In the Order, the Court sua sponte granted Plaintiff additional time to file an amended complaint. Id. However, the Court cautioned Plaintiff that failure to timely file a First Amended Complaint by February 25, 2015 would result in a recommendation that the action be dismissed with prejudice for failure to prosecute and obey court orders. Id. The Order was sent to Plaintiff at his address of record. Id.
As of this date, Plaintiff has failed to file a First Amended Complaint, or otherwise respond to either the Court's January 9, 2015 Dismissal Order or February 17, 2015 Order to Show Cause.
II .
DISCUSSION
It is well established that district courts have authority to dismiss actions for failure to prosecute or to comply with court orders. See Fed.R.Civ.P. 41(b); Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (standard applied in dismissal for failure to prosecute); Link v. Wabash Railroad Co., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962) (dismissal for failure to prosecute to avoid undue delay or congestion in court calendars); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (dismissal for failure to comply with any court order).
In deciding whether to dismiss for failure to prosecute or to 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 prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions." Omstead, 594 F.3d at 1084 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)); see also 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).
In the present action, the first two factors -- public interest in expeditious resolution of litigation and the court's need to manage its docket -- weigh in favor of dismissal. Plaintiff has failed to file a First Amended Complaint despite the Court's sua sponte granting of additional time in which to do so. This hinders the Court's ability to move this case toward disposition, and suggests Plaintiff does not intend to litigate this action diligently.
The third factor -- prejudice to defendants -- also weighs in favor of dismissal. A rebuttable presumption of prejudice to a defendant arises when a plaintiff unreasonably delays prosecution of an action. See Eisen, 31 F.3d at 1452-53. Nothing suggests that such a presumption is unwarranted in this case.
The fourth factor -- public policy in favor of deciding cases on the merits -- ordinarily weighs against dismissal. However, it is a plaintiff's responsibility to move towards disposition at a reasonable pace, and avoid dilatory and evasive tactics. See Morris v. Morgan Stanley, 942 F.2d 648, 652 (9th Cir. 1991). Plaintiff has not discharged this responsibility, despite having been instructed on his responsibilities, granted sufficient time in which to discharge them, and warned of the consequences of failure to do so. Under these circumstances, the policy favoring resolution of disputes on the merits does not outweigh Plaintiff's failure to prosecute or obey court orders.
The fifth factor -- availability of less drastic sanctions -- also weighs in favor of dismissal. The Court cannot move the case toward disposition without Plaintiff's compliance with court orders or participation in this litigation. Plaintiff has shown that he is either unwilling or unable to comply with court orders by filing responsive documents or otherwise cooperating in prosecuting this action.
Finally, dismissal should not be entered unless a plaintiff has been notified that dismissal is imminent. See West Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1523 (9th Cir. 1990). Here, the Court's February 17, 2015 Order to Show Cause specifically warned Plaintiff the case would be dismissed with prejudice if he failed to respond.
III .
ORDER
It therefore is ORDERED that this action be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b), Local Rule 41-6, and the Court's inherent power to achieve the orderly and expeditious disposition of cases by dismissing actions for failure to prosecute. See also Link, 370 U.S. at 629-30.