-JC James Patrick Schuetze et al v. Orange Co Social Services Agency et al, No. 2:2005cv06031 - Document 107 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER DISMISSING ACTION by Judge Dean D. Pregerson. It is ORDERED that this action be dismissed for lack of prosecution. See memorandum for details. (hr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JAMES PATRICK SCHUETZE, 12 Plaintiff, 13 v. 14 ORANGE COUNTY SOCIAL SERVICES AGENCY, et al., 15 16 17 Defendants. _______________________________ ) Case No. CV 05-6031 DDP(JC) ) ) MEMORANDUM OPINION AND ) ORDER DISMISSING ACTION ) ) ) ) ) ) On February 16, 2011, plaintiff James Patrick Schuetze ( plaintiff ), who is 18 at liberty, is proceeding pro se and has been granted leave to proceed in forma 19 pauperis, filed the operative Second Amended Civil Rights Complaint ( Second 20 Amended Complaint or SAC ). On May 3, 2012, after screening the Second 21 Amended Complaint under 28 U.S.C. § 1915(e)(2), the Magistrate Judge dismissed 22 the Second Amended Complaint with leave to amend. In the May 3, 2012 Order 23 and again in a May 30, 2012 Order extending plaintiff s deadline to file a Third 24 Amended Complaint, the Magistrate Judge further cautioned plaintiff that the 25 failure timely to file a Third Amended Complaint would subject this action to 26 dismissal for failure to prosecute. Plaintiff s deadline to file a Third Amended 27 Complaint was June 17, 2012, but to date, he has not done so. 28 1 1 Courts may dismiss lawsuits that are not diligently prosecuted. See Link v. 2 Wabash R.R., 370 U.S. 626, 629-30 (1962); Carey v. King, 856 F.2d 1439, 1440 3 (9th Cir. 1988) (per curiam). In determining whether to dismiss a pro se plaintiff s 4 action for failure to prosecute, a court must consider: (1) the public s interest in 5 expeditious resolution of litigation; (2) the court s need to manage its docket; 6 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition 7 of cases on their merits; and (5) the availability of less drastic alternatives. Carey, 8 856 F.2d at 1440. Unreasonable delay creates a rebuttable presumption of prejudice 9 to the defendants that can be overcome only with an affirmative showing of just 10 cause by the plaintiff. In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994). 11 Here, the first, second, third, and fifth Carey factors militate in favor of 12 dismissal. Plaintiff s claims concern events that happened several years ago and 13 thus are already somewhat stale. Further delay would only make it more difficult 14 for defendants some of whom plaintiff named for the first time in the Second 15 Amended Complaint and have not yet been served to mount a defense. There also 16 does not appear to be any less drastic sanction the Court can take, as plaintiff has 17 not availed himself of the opportunity to file a Third Amended Complaint, even 18 after being expressly warned that if he failed to do so, his lawsuit might be 19 dismissed. Although the fourth factor weighs against dismissal as it does in every 20 case the other factors together outweigh the public s interest in disposing of the 21 case on its merits. 22 Accordingly, it is ORDERED that this action be dismissed for lack of 23 prosecution. 24 DATED: __July 6, 2012__ 25 26 ____________________________________ 27 HONORABLE DEAN D. PREGERSON 28 UNITED STATES DISTRICT JUDGE 2

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