Anthony Vasquez v. Jesse Rubalcava et al, No. 8:2011cv01968 - Document 9 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER DISMISSING ACTION FOR FAILURE TO STATE A CLAIM AND FAILURE TO PROSECUTE by Judge Dale S. Fischer. (twdb)
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o 1 2 3 J f- t , HEREBY CERTIFY THAT THIS DOCUMENT WAS SERVED Ill' FIRST CLASS MAIL POSTAGE PREPAID, Tom COONS£l"f \e\.~ . . (ell MRTltS) AT THEIR RESPECTIVE MOST RECENT ADDRESS OF RECORD IN THIS ACTION ON THIS DATE. DATEO: 4 -'mEo-:SOUTHERNQIVlsi<5N-- z2 CLERK, U.S DISTRICT COURl S' '4' \"L-- DEPUTYCL~2 MAY - 4 2012 5 J l ~~NTR~TRICT OF CALIFORNIA 6 \J DEPUTY 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 ANTHONY VASQUEZ, Plaintiff, 13 v. 14 15 JESSE RUBALCAVA et al., Defendants. 16 ) ) ) ) ) ) ) ) ) ) ) Case No. SACV 11-1968-DSF (JPR) MEMORANDUM OPINION AND ORDER DISMISSING ACTION FOR FAILURE TO STATE A CLAIM AND FAILURE TO PROSECUTE 17 18 Plaintiff filed this pro se civil rights action on December 19 30, 2011. He subsequently was granted leave to proceed in forma 20 pauperis. On January 20, 2012, after screening the Complaint 21 under 28 U.S.C. 22 with leave to amend. 23 First Amended Complaint. 24 dismissed the FAC with leave to amend. 25 Plaintiff that if he did not file a Second Amended Complaint by 26 April 4, 2012, his lawsuit would be subject to dismissal for 27 failure to prosecute. 28 § 1915(e) (2), the Magistrate Judge dismissed it On February 17, 2012, Plaintiff filed a On March 7, 2012, the Magistrate Judge She expressly warned To date, Plaintiff has not filed a SAC. 1 Courts may dismiss lawsuits that are not diligently 2 prosecuted. Link v. Wabash R.R. Co., 370 U.S. 626, 629-30, 82 S. 3 Ct. 1386, 1388, 8 L. Ed. 2d 734 (1962); Carey v. King, 856 F.2d 4 1439, 1441 (9th Cir. 1988) 5 to dismiss a pro se plaintiff's action for failure to prosecute, a 6 court must consider "(1) the public's interest in expeditious 7 resolution of litigation; 8 docket; 9 public policy favoring disposition of cases on their merits; and (per curiam). In determining whether (2) the court's need to manage its (3) the risk of prejudice to the defendants; (4) the 10 (5) the availability of less drastic sanctions." 11 at 1440. 12 prejudice to the defendants that can be overcome only with an 13 affirmative showing of just cause by the plaintiff. 14 31 F.3d 1447, 1452-53 (9th Cir. 1994). 15 Carey, 856 F.2d Unreasonable delay creates a rebuttable presumption of In re Eisen, Here, the first, second, third, and fifth Carey factors 16 militate in favor of dismissal. As noted in the Magistrate 17 Judge's previous orders, Plaintiff's claims concern events that 18 happened several years ago and thus are already somewhat stale. 19 Further delay would only make it more difficult for Defendants to 20 mount a defense. 21 drastic sanction the Court can take, as Plaintiff has not availed 22 himself of the opportunity to file a SAC, even after being 23 expressly warned that if he failed to do so his lawsuit might be 24 dismissed. 25 as it does in every case - the other factors together outweigh the 26 public's interest in disposing of the case on its merits. There also does not appear to be any less Although the fourth factor weighs against dismissal - 27 Accordingly, it is ORDERED that this action be dismissed 28 because most of the First Amended Complaint fails to state a claim 2 1 upon which relief might be granted (for the reasons stated in the 2 Magistrate Judge's January 20 and March 7 Orders), and because 3 Plaintiff has failed to prosecute his lawsuit. 4 5 6 Dated: 5/3/12 1(") n 9 -f:. } ~~ j). , _jL4~v1~) DALE S. FISCHER U.S. District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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