Andre Luiz Costa Soares v. J. Janecka et al, No. 5:2020cv00264 - Document 11 (C.D. Cal. 2022)
Court Description: MEMORANDUM OPINION AND ORDER DISMISSING COMPLAINT AND ACTION by Judge Otis D. Wright, II. IT IS THEREFORE ORDERED that this action is dismissed based on plaintiff's unreasonable failure to prosecute and his failure to comply with the July 16 Order (as extended by the July 27 Order). (see document for further details) (hr)
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Andre Luiz Costa Soares v. J. Janecka et al Doc. 11 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 ANDRE LUIZ COSTA SOARES, Plaintiff, 13 14 15 v. J. JANECKA, et al., Case No. 5:20-cv-00264-ODW-JC MEMORANDUM OPINION AND ORDER DISMISSING COMPLAINT AND ACTION Defendants. 16 17 On February 10, 2020, pro se plaintiff Andre Luiz Costa Soares, who was 18 19 20 21 22 23 then an immigration detainee in the custody of the Immigration and Customs Enforcement at the Adelanto Detention Facility, filed a verified Civil Rights Complaint (“Complaint”) pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), against multiple defendants seeking, inter alia, his release from immigration detention. On June 16, 2021, respondents in Costa Soares v. Wolf, et al., C.D. Cal. 24 25 26 27 28 Case No. 5:20-cv-02214-ODW-JC (“2214 Case”), filed a notice in such action informing the Court that plaintiff had been released from immigration custody on /// /// Dockets.Justia.com 1 April 2, 2021. See 2214 Case Docket No. 29.1 On July 16, 2021, the Court issued 2 an order (“July 16 Order”) in four of plaintiff’s pending cases, including this case, 3 requiring plaintiff to notify the Court whether he wished to pursue his cases in light 4 of his release. (Docket No. 8). The July 16 Order expressly cautioned plaintiff in 5 bold-faced print that “the failure timely to respond to [the July 16 Order] may 6 result in the dismissal of one or more of the four above-captioned cases 7 [including the instant case] for failure to prosecute and/or failure to comply 8 with [the July 16 Order].” (Docket No. 8). 9 The copy of the July 16 Order that had been sent to plaintiff at his then 10 address of record was returned, so on July 27, 2021, the Court directed the Clerk to 11 update plaintiff’s address to the address he has been using since his release from 12 immigration custody (“plaintiff’s current address”)2 and to resend him the July 16 13 Order, and extended plaintiff’s deadline to respond there to August 10, 2021 (“July 14 27 Order”). (Docket Nos. 9-10). The July 27 Order likewise cautioned plaintiff 15 that “the failure timely to respond to the [July 16 Order] by the extended 16 deadline set in the [July 27 Order] may result in the dismissal of one or more 17 of the four above-captioned cases [including the instant case] for failure to 18 prosecute and/or failure to comply with the [July 16 Order] as extended by 19 the [July 20 Order].” (Docket No. 9). As the July 27 Order (and the July 16 20 21 22 23 24 25 26 27 28 1 The Court takes judicial notice of plaintiff’s numerous other federal actions. See Fed. R. Evid. 201(c); Harris v. County of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (“We may take judicial notice of undisputed matters of public record, including documents on file in federal or state courts.”) (citation omitted). 2 More specifically, plaintiff’s current address – 7095 Hollywood Boulevard, Suite 348 Los Angeles, CA 90028 – has been used by plaintiff between July 2021 and September 2021 in at least the following actions: (1) Malibu Entertainment ALCS LLC, et al. v. Bank of the West, et al., C.D. Cal. Case No. 2:21-cv-5934-AB-GJS (“Malibu Entertainment”); and (2) Andre Luiz Costa Soares v. U.S. Department of Homeland Security, C.D. Cal. Case No. 5:21-cv-01220ODW-JC (“1220 Case”). See Malibu Entertainment Docket Nos. 1, 11 16 (plaintiff’s filings between July 22, 2021 and September 13, 2021); 1220 Case Docket Nos. 1, 2, 6, 10 (plaintiff’s/petitioner’s filings between July 22, 2021 and September 9, 2021). 2 1 Order attached thereto) which were sent to plaintiff’s current address have not been 2 returned, and as plaintiff has affirmatively been using plaintiff’s current address 3 and filing documents in other cases between July 2021 and September 2021, the 4 Court presumes plaintiff received the July 27 Order (and the July 16 Order 5 attached thereto). 6 Plaintiff’s deadline to file a response to the July 16 Order as extended by the 7 July 27 Order expired more than two months ago. To date, plaintiff has not filed a 8 response or a request for an extension of time to do so. Indeed, plaintiff has not 9 filed anything in this action since April 1, 2020. (Docket No. 6). Since plaintiff 10 has actively participated in at least two other actions by filing documents between 11 July 2021 and September 2021 (see supra note 2), it is reasonable to infer that 12 plaintiff has intentionally failed to respond to the July 16 Order (as extended by the 13 July 27 Order) and has abandoned his pursuit of the instant action. 14 It is well-established that a district court may sua sponte dismiss an action 15 where the plaintiff has failed to comply with a court order and/or unreasonably 16 failed to prosecute. See Fed. R. Civ. P. 41(b) (permitting dismissal “[i]f the 17 plaintiff fails to prosecute or to comply with . . . a court order”); Link v. Wabash 18 Railroad Co., 370 U.S. 626, 629-33 (1962) (permitting district courts sua sponte to 19 dismiss actions based on the failure to prosecute); Ferdik v. Bonzelet, 963 F.2d 20 1258, 1260 (9th Cir.) (as amended) (permitting district courts to dismiss actions 21 based on failure to comply with court order), cert. denied, 506 U.S. 915 (1992); 22 McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991) (district court may sua 23 sponte dismiss action for an unreasonable failure to prosecute). 24 In determining whether to dismiss an action for failure to prosecute or 25 failure to comply with court orders, a district court must consider several factors, 26 namely (1) the public’s interest in expeditious resolution of litigation; (2) the 27 court’s need to manage its docket; (3) the risk of prejudice to defendants; (4) the 28 public policy favoring disposition of cases on their merits; and (5) the availability 3 1 of less drastic alternatives. See In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994) 2 (failure to prosecute); Ferdik, 963 F.2d at 1260-61 (failure to comply with court 3 orders). Dismissal is appropriate under the foregoing analysis “where at least four 4 factors support dismissal . . . or where at least three factors ‘strongly’ support 5 dismissal.” Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) 6 (citations omitted). 7 Here, dismissal is appropriate based on plaintiff’s failure to comply with the 8 July 17 Order (as extended by the July 27 Order) and the failure to prosecute. The 9 Court has considered the five factors discussed above – the public’s interest in 10 expeditious resolution of litigation, the court’s need to manage its docket, the risk 11 of prejudice to defendants, the public policy favoring disposition of cases on their 12 merits, and the availability of less drastic alternatives. The first two factors – the 13 public’s interest in expeditiously resolving this litigation and the Court’s interest in 14 managing the docket – strongly weigh in favor of dismissal. As noted above, 15 plaintiff – who has been released – has been directed to notify the Court whether, 16 in light of such release, he wishes to continue to pursue this action in which he 17 seeks his release, and plaintiff has not responded. The third factor, risk of 18 prejudice to defendants, also weighs strongly in favor of dismissal. See Anderson 19 v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976) (prejudice to defendants 20 presumed from unreasonable delay) (citation omitted). The fourth factor, the 21 public policy favoring disposition of cases on their merits, is greatly outweighed by 22 the factors in favor of dismissal discussed herein – particularly since the matter 23 appears to be moot at least to the extent it seeks plaintiff’s release. As for the fifth 24 factor, since plaintiff has already been cautioned of the consequences of his failure 25 to prosecute and his failure to comply with the July 16 Order (as extended by the 26 July 27 Order) and plaintiff has been afforded the opportunity to avoid the 27 consequence of dismissal by responding but has done nothing, no sanction lesser 28 than dismissal is feasible. 4 1 IT IS THEREFORE ORDERED that this action is dismissed based on 2 plaintiff’s unreasonable failure to prosecute and his failure to comply with the July 3 16 Order (as extended by the July 27 Order). 4 IT IS SO ORDERED. 5 March 17, 2022 6 DATED: ____________________ _____ 7 8 ___________________________________ ______________ ____ _____ _______________ 9 HONORABLE OTIS OT TIS D. D. WRIGHT,, II UNITED STATES DISTRICT DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5
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