-MLG Tom J Garner v. The People of the State of California et al, No. 5:2011cv01552 - Document 6 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER DISMISSING COMPLAINT FOR FAILURE TO PROSECUTE by Judge Virginia A. Phillips: (See document for details.) (rla)

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\l 1 a \\ [NO~2_2011 2 3 CLERK. u.s. DISH11CT COURT ITED STATES DI ~r;.t#JtlA""~'r'i~~IC£T OF CALIFORNII UN 4 "'3\"Jt~'!'r::I'nY~~~la A S.ANTA AN/> BY DEPUT, 5 CENTRAL DISTRICT OV-C-~O"RNI}t 6 EASTERN DIVISION - . 7 8 9 MEMORANDUM OPINION AND ORDER DISMISSING COMPLAINT FOR FAILURE TO PROSECUTE Plaintiff, 10 v. 11 12 Case No. EDCV 11-1552-VAP (MLG) TOM J. GARNER, JR. , STATE OF CALIFORNIA, et al. , Defendants. 13 14 15 16 I. Facts and Procedural Background 17 Plaintiff Tom J. Garner, Jr. is a prisoner at the Kern Valley 18 State Prison. At the time of the events giving rise to this cause of 19 action, 20 Facility in Murrieta, California. 21 he was a pre-trial detainee at the Southwest Detention Plaintiff filed this pro se civil rights complaint, pursuant to 22 42 U. S. C. 23 California, Nurse Tracy and Deputy Duffy as defendants. The complaint 24 alleges that on January 17, 25 dispensing line at the jail to complain of diarrhea, chest pains, flu 26 symptoms and shortness of breath. Plaintiff claims that Tracy failed 27 to assist 28 inmates and that Duffy also refused to provide him with medical § 1983, him, on October claiming that 6, 2011, 2011. He named Plaintiff went the State of into the pill she was dispensing pills to other .....: - 1 assistance. 2 Plaintiff claims that he saw a doctor seven days later, who 3 diagnosed Plaintiff with a cold in his chest, 4 asthma inhaler to treat a chronic asthma condition. Plaintiff claims 5 he 6 determined that Plaintiff had only been suffering from a head cold. 7 Plaintiff contends that the individual defendants acted negligently 8 and unprofessionally. filed several grievances, and prescribed an which were denied because it was 9 On October 12, 2011, Magistrate Judge Marc L. Goldman dismissed 10 the complaint with leave to amend. In doing so, it was found that 11 plaintiff had failed to state a 12 granted as to his allegations of deliberate indifference to his 13 serious medical needs, 14 California was 15 instructed to file a first amended complaint remedying the identified 16 deficiencies no later than November 9, 2011. Plaintiff was explicitly 17 informed that failure to do so would result in dismissal of the 18 action without prejudice. Plaintiff has not filed a first amended 19 complaint in the time allowed. 20 dismissed without prejudice for failure to prosecute. claim upon which relief may be and that any action against the State of barred by the Eleventh Amendment. Accordingly, Plaintiff was this action will be 21 Federal courts possess the discretionary authority to dismiss 22 an action based on a plaintiff's failure to diligently prosecute or 23 comply with a court order. Fed.R.Civ.P. 41(b); Local Rule 12.1. See 24 Link v. Wabash R.R. Co., 370 U.S. 626, 629-630 (1962). "Dismissal is 25 a harsh penalty and is to be imposed only in extreme circumstances." 26 Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). The Court 27 is required to weigh the following factors in determining whether to 28 dismiss a case for lack of prosecution: "(1) the public's interest 2 . 1 in expeditious resolution of litigation; 2 manage its docket; 3 the public policy favoring disposition of cases on their merits; and 4 (5) 5 Inc, 594 F.3d 1081, 1084 (9th Cir. 2010); In re Eisen, 31 F.3d 1447, 6 1451 (9th Cir. 1994) 7 (2) the court's need to (3) the risk of prejudice to the defendants; (4) the availability of less drastic sanctions." Omstead v. Dell, (citing Henderson, 779 F.2d at 1423) . In weighing these factors, the court concludes that dismissal 8 is 9 opportunities to state a viable cause of action. Here, the public's 10 interest in the expeditious resolution of litigation and the court's 11 interest in managing its docket weighs in favor of dismissal. Given 12 Plaintiff's failure to comply with the court's order, dismissal would 13 not undermine the public policy favoring disposition of cases on the 14 merits. 15 Defendants. 16 17 appropriate in this case. Plaintiff has been afforded two In addition, there is no identifiable risk of prejudice to Accordingly, it is ORDERED that this action be dismissed without prejudice for failure to prosecute. 18 19 Dated: 1)f\?Yl.n1Nw d:r , 2011 20 21 22 lnla A. Phillips ed States District Judge 23 24 25 26 27 pres~~~ Marc L. Goldman United States Magistrate Judge 28 3

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