Opinion
Raymond E Peyton, Plaintiff, Pro se, Corcoran, CA.
R. GARY KLAUSNER, UNITED STATES DISTRICT JUDGE. Jean P. Rosenbluth, United States Magistrate Judge.
ORDER DISMISSING PLAINTIFF'S SECOND AMENDED COMPLAINT FOR FAILURE TO PROSECUTE AND FOR THE REASONS STATED IN THE MAGISTRATE JUDGE'S MARCH 2 AND APRIL 14, 2015 ORDERS
R. GARY KLAUSNER, UNITED STATES DISTRICT JUDGE.
Plaintiff, a prisoner housed at Corcoran State Prison, filed pro se his civil-rights Complaint on March 13, 2013, and was granted leave to proceed in forma pauperis. On April 4, 2013, the Magistrate Judge dismissed the Complaint with leave to amend because it failed " to state civil rights violations upon which relief might be granted."
On May 1, 2013, Plaintiff filed a First Amended Complaint, alleging Eighth Amendment violations based on prison overcrowding. On May 23, 2013, the Magistrate Judge recommended that the FAC be dismissed without leave to amend because it suffered from numerous deficiencies. On July 12, 2013, the Court accepted the Magistrate Judge's findings and recommendations, denied the FAC without leave to amend, and entered judgment dismissing the action with prejudice.
Plaintiff appealed. On August 20, 2014, the Ninth Circuit affirmed the dismissal without leave to amend of most of Plaintiff's claims but remanded to allow Plaintiff " another opportunity to amend his claims regarding the allegedly inhumane conditions of his confinement." Peyton v. Brown, 584 F.App'x 603, 604 (9th Cir. 2014).
On January 16, 2015, the Magistrate Judge ordered Plaintiff to file a second amended complaint " in strict compliance with the Ninth Circuit's mandate and the Court's prior dismissal orders to the extent they were upheld by the Ninth Circuit." On January 26, 2015, Plaintiff filed what he labeled " Second Amended Complaint." On March 2, 2015, the Magistrate Judge found that the purported complaint failed to state any claims and did not name a proper defendant. She nonetheless afforded Plaintiff " one more chance" to file a proper SAC.
On March 16, 2015, Plaintiff filed a Second Amended Complaint, again alleging Eighth Amendment violations and also requesting appointment of counsel. (SAC at 2, 6.) On April 14, 2015, the Magistrate Judge again dismissed the complaint with leave to amend because it largely failed " to state a claim upon which relief might be granted." She denied Plaintiff's request for appointment of counsel, explaining that " the exceptional circumstances necessary to grant Plaintiff's request do not exist at this time." She nonetheless gave him " one more opportunity" to attempt to state a claim. She expressly warned him, however, that if he did not file a third amended complaint by April 13, 2015, his lawsuit would likely be dismissed for the reasons stated in the order and for failure to prosecute. To date, Plaintiff has not filed a third amended complaint.
Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (per curiam), examined when it is appropriate to dismiss a plaintiff's lawsuit for failure to prosecute. See also Link v. Wabash R.R. Co., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962) (" The power to invoke [dismissal] is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts.").
In determining whether to dismiss a pro se plaintiff's action for failure to prosecute, a court must consider " (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." Carey, 856 F.2d at 1440 (internal quotation marks omitted). Unreasonable delay creates a rebuttable presumption of prejudice to the defendants that can be overcome only with an affirmative showing of just cause by the plaintiff. See In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994).
Here, the first, second, third, and fifth Carey factors militate in favor of dismissal. In particular, Plaintiff has offered no explanation for his failure to file a third amended complaint. Thus, he has not rebutted the presumption of prejudice to Defendants, which is only exacerbated by the more than two years this lawsuit has been pending. No less drastic sanction is available, as no viable pleading is before the Court and Plaintiff has ceased communicating with it; both of these factors also render the Court unable to manage its docket. Although the fourth Carey factor weighs against dismissal -- as it always does -- together the other factors outweigh the public's interest in disposing of the case on its merits. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261-62 (9th Cir. 1992) (upholding dismissal of pro se civil-rights action for failure to timely file amended complaint remedying deficiencies in caption); Baskett v. Quinn, 225 F.App'x 639, 640 (9th Cir. 2007) (upholding dismissal of pro se civil-rights action for failure to state claim or timely file amended complaint).
ORDER
Accordingly, this action is dismissed with prejudice under the Court's inherent power to achieve the orderly and expeditious disposition of cases by dismissing actions for failure to prosecute and for the reasons outlined in the Magistrate Judge's March 2 and April 14, 2015 orders.
LET JUDGMENT BE ENTERED ACCORDINGLY.
JUDGMENT
IT IS HEREBY ADJUDGED that this action is dismissed with prejudice.