1 2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE CENTRAL DISTRICT OF CALIFORNIA 11 12 Case No. CV 19-5112 -ODW (MRW) 13 KELLEN CLARKE, ORDER DISMISSING ACTION 14 Plaintiff, WITH PREJUDICE 15 v. 16 CITY OF ATASCADERO POLICE DEPARTMENT, et al., 17 Defendants. 18 19 The Court dismisses the action with prejudice for failure to prosecute and 20 for failure to respond to court orders. 21 * * * 22 1. This is a pro se civil rights action. Plaintiff alleges that several 23 members of the Atascadero police department used excessive force against him 24 during a 2018 arrest. (Complaint at 5-6.) 25 2. Magistrate Judge Wilner reviewed Plaintiff’s complaint. 28 U.S.C. 26 § 1915(e)(2). (Docket # 5.) Judge Wilner authorized service of the complaint 27 on three individual officers (Virgil, Mobley, and Meyers).

(d). 28 1 The action was dismissed with leave to amend against other parties. All 2 “official capacity” claims were also dismissed. 3 3. Judge Wilner’s screening order directed the U.S. Marshals Service 4 to serve the complaint on the defendants on Plaintiff’s behalf. However, the 5 screening order informed Plaintiff that he might be required to provide the 6 Marshals Service with more information about the named defendants if there 7 was difficulty in effecting service. 8 4. That’s what happened here. The Marshals Service filed process 9 returns with the Court indicating that it was not able to serve any of the 10 defendants. (Docket # 8-10.) The Atascadero police department reported that it 11 never had an employee named Meyers. Moreover, the other two officers no 12 longer work for the department; no forwarding address was available. 13 5. Judge Wilner informed Plaintiff of this in November 2019. (Docket 14 # 11.) The order required Plaintiff to provided the Marshals Service with more 15 information about the putative defendants so they could be identified, located 16 and served with process. 17 6. Judge Wilner’s order gave Plaintiff until December 2019 to 18 respond. Plaintiff failed to file a timely response. 19 7. Judge Wilner then issued an order to show cause why the action 20 should not be dismissed for failure to prosecute or to obey court orders. (Docket 21 # 12.) The order (like the previous one) specifically informed Plaintiff that his 22 action was subject to dismissal under Federal Rule of Civil Procedure 41. The 23 order also cited the Ninth Circuit’s recent opinion (Applied Underwriters, Inc. v. 24 Lichtenegger,

(9th Cir. 2019)) regarding dismissal of civil actions. 25 8. Again, Plaintiff failed to file a response. To date, Plaintiff has not 26 filed anything in this Court since commencing the action. None of the 27 defendants has been served with process. 28 1 * * * 2 9. Rule 41(b) provides that if a plaintiff “fails to prosecute or to 3 comply with these rules or a court order, a defendant may move to dismiss the 4 action or any claim against it.” Dismissal also may be ordered by the Court 5 sua sponte. Link v. Wabash R.R.,

(1962). 6 10. Rule 41(b) authorizes a court to dismiss a civil action when a 7 plaintiff has not filed a required pleading “after being given leave to do so and 8 has not notified the court of his intention not to file” that document. Harris v. 9 Magnum,

(9th Cir. 2017). Rule 41(b) applies when a court 10 “mandate[s] the filing” of a pleading and “indicate[s] that failure to do so would 11 result in dismissal” under the rule. Applied Underwriters,

. 12 11. A district court must consider a variety of factors before dismissing 13 an action under Rule 41(b). They are: the public’s interest in the expeditious 14 resolution of litigation; the court’s need to manage its docket; the risk of 15 prejudice to defendants; the public policy favoring disposition of cases on their 16 merits; and the availability of less drastic alternatives to dismissal. Omstead v. 17 Dell, Inc.,

(9th Cir. 2010); Yourish v. Cal. Amplifier, 191

(9th Cir. 1999). 19 * * * 20 12. In the present action, dismissal is appropriate. Plaintiff did not 21 respond to any of the magistrate judge’s orders directing Plaintiff to provide 22 more information about his alleged tortfeasors so they could be served with 23 process. Plaintiff’s failure to respond to the Court’s orders demonstrates that he 24 has no interest in advancing the action on the merits of his claim. 25 13. By contrast, the Court, the defense, and the public have a strong 26 interest in terminating this action. Furthermore, because Plaintiff is a pro se 27 litigant who has not abided by the Court’s recent orders, no sanction short of 28 1 | dismissal will be effective in moving this case forward.' Omstead,

| 1084. The Court finds that dismissal is appropriate under Rule 41(b). Applied 3 | Underwriters,

. 4 Accordingly, this action is DISMISSED with prejudice. 5 IT IS SO ORDERED. NN 6 ayge- 7 | Dated: _February 5, 2020 8 HON. OTIS D. WRIGHT II UNITED STATES DISTRICT JUDGE 9 10 Presented by: 1] 12 [ 13 14 | HON. MICHAEL R. WILNER 5 UNITED STATES MAGISTRATE JUDGE

16 17 18 19 20 21 22 23 24 25 26 I The Court notes that Mr. Clarke failed to meaningfully participate in another civil action he filed regarding his recent detention. Clarke v. 27 | Parkinson, CV 18-6452 ODW (MRW) (C.D. Cal.). The Court entered summary judgment against Plaintiff; he neither responded to the defense motion nor 28 | appealed the adverse decision.