1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CHARLES SAXTON, Case No.: 22cv0562-RBM (JLB) INMATE #21143064, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILING TO STATE vs. A CLAIM AND FAILING TO 14 PROSECUTE

15 SAN DIEGO COUNTY SHERIFF’S 16 DEPARTMENT, et al., 17 Defendants. 18 19 On April 21, 2022, Plaintiff Charles Saxton, an inmate detained at the George Bailey 20 Detention Facility in San Diego, California, proceeding pro se, filed a civil rights action 21 pursuant to

accompanied by a motion to proceed in forma pauperis. (ECF 22 Nos. 1-2.) Plaintiff claimed he was denied clean and safe living conditions and adequate 23 medical and dental care. (ECF No. 1 at 3-5.) 24 On May 23, 2022, the Court granted Plaintiff’s motion to proceed in forma pauperis 25 and screened the Complaint pursuant to

(e)(2) & 1915A(b), which 26 require a court to sua sponte dismiss a prisoner’s in forma pauperis complaint, or any 27 portion of it, which is frivolous, malicious, fails to state a claim, or seeks damages from 28 defendants who are immune. (ECF No. 3.) The Court found Plaintiff did not state a § 1983 1 claim against the San Diego County Sheriff’s Department or its subdivisions, which were 2 the only named Defendants, because those entities are not “persons” within the meaning of 3 § 1983, and informed Plaintiff of the pleading requirements to state a claim for 4 unconstitutional conditions of confinement and inadequate medical care against a proper 5 defendant. (Id. at 5-11.) 6 Plaintiff was granted leave to amend and instructed to file an amended complaint on 7 or before July 7, 2022. (Id. at 12-13.) He was informed that if he failed to timely amend, 8 the Court would enter a final judgment of dismissal based on his failure to state a claim 9 and his failure to prosecute in compliance with the court order requiring amendment. (Id. 10 at 13, citing Lira v. Herrera,

(9th Cir. 2005) (“If a plaintiff does not 11 take advantage of the opportunity to fix his complaint, a district court may convert the 12 dismissal of the complaint into dismissal of the entire action.”)) 13 On June 6, 2022, Plaintiff filed a motion to stay this action for six months “so I can 14 get out of custody and file the right motions on the case. It is hard to get the forms to file 15 the motions needed let alone a request for the matter to be continued while in custody.” 16 (ECF No. 4 at 1.) On June 13, 2022, the Court denied the motion for stay because there 17 was no operative complaint on file, no motions were due, and the time to amend had not 18 passed. (ECF No. 5 at 2.) Plaintiff was instructed that he could file a motion to extend the 19 time to amend if he wished to do so without the necessity of a form. (Id.) 20 The deadline to amend has passed and Plaintiff has not filed an amended complaint 21 or sought an extension of time to do so. This Court has discretion to sua sponte dismiss a 22 case for lack of prosecution or failure to comply with a court order. Henderson v. Duncan, 23

(9th Cir. 1986); see also FED. R. CIV. P. 41(b) (providing for 24 involuntary dismissal for failure to prosecute or comply with the federal rules or court 25 order). “The failure of the plaintiff eventually to respond to the court’s ultimatum–either 26 by amending the complaint or by indicating to the court that [he] will not do so–is properly 27 met with the sanction of a Rule 41(b) dismissal.” Edwards v. Marin Park,

, 28 1065 (9th Cir. 2004). 1 “In determining whether to dismiss a claim for failure to prosecute or failure to 2 comply with a court order, the Court must weigh the following factors: (1) the public’s 3 interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; 4 (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic 5 alternatives; and (5) the public policy favoring disposition of cases on their merits.” 6 Pagtalunan v. Galaza,

(9th Cir. 2002), citing Ferdik v. Bonzelet, 963

, 1260-61 (9th Cir. 1992). Because the Court has informed Plaintiff of his need 8 to timely amend but he has failed to do so, factors one, two and four weigh in favor of 9 dismissal. See Yourish v. California Amplifier,

(9th Cir. 1999) (“[T]he 10 public’s interest in expeditious resolution of litigation always favors dismissal.”); 11 Pagtalunan,

(“The trial judge is in the best position to determine whether 12 the delay in a particular case interferes with docket management and the public interest.”); 13 Nevijel v. North Coast Life Insurance Co.,

(9th Cir. 1981) (a court is not 14 required to exhaust all alternatives prior to dismissal). Factor five does not weigh against 15 dismissal. See In re Phenylpropanolamine (PPA) Prod. Liab. Litig.,

, 1227 16 (9th Cir. 2006) (the public policy favoring disposition on the merits does not weigh against 17 dismissal where plaintiff’s “conduct impedes progress in that direction.”) Only factor three 18 does not weigh in favor of dismissal. See Pagtalunan,

(where defendants 19 have not appeared, “[w]e have previously recognized that pendency of a lawsuit is not 20 sufficiently prejudicial in and of itself to warrant dismissal.”) 21 Weighing these factors, the Court finds entry of a final judgment of dismissal is 22 appropriate. See Hernandez v. City of El Monte,

(9th Cir. 1998) (“We 23 may affirm a dismissal where at least four factors support dismissal, or where at least three 24 factors ‘strongly’ support dismissal.”) (internal citation omitted), quoting Ferdik,

. 26 CONCLUSION AND ORDER 27 The Court DISMISSES this civil action without prejudice based on Plaintiff’s 28 failure to state a claim upon which relief may be granted pursuant to

|} 1915(e)(2) & 1915A(b), and for failure to prosecute by failing to file an amended complaint 2 required by the Court’s May 23, 2022, Order. The Court DIRECTS the Clerk of Court 3 || to enter a final judgment of dismissal and close the file. 4 IT IS SO ORDERED. 5 Dated: August 25, 2022 Fe Le ; ? L □ 6 HON. RUTH BERMUDEZ MONTENEGRO 7 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4