1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DEVALE WRIGHT, Case No. 5:24-cv-01421-DSF-PD

12 Plaintiff, ORDER DISMISSING ACTION 13 v. FOR FAILURE TO PROSECUTE 14 NEGROM, et al., 15 Defendants. 16

17 I. Pertinent Procedural History and Plaintiff’s Claims 18 On August 15, 2024, Plaintiff Devale Wright (“Plaintiff”), who is 19 proceeding pro se, filed a First Amended Complaint (“FAC”) pursuant to 42

against Defendants NeGrom and Hilfer, custody specialists for 21 the San Bernardino County Sheriff’s Department (“SBCSD”), and Sanchez 22 and Rodriguez deputies for the SBCSD, in their official capacity. [Id. at 3-4.1] 23 Plaintiff alleged that Defendants allowed him to be locked down in his cell at 24 West Valley Detention Center (“WVDC”) for more than 24 hours on numerous 25 26

27 1 The Court uses the page numbers inserted on the pleadings by the electronic docketing system. 28 1 occasions in violation of the Eighth Amendment’s prohibition against cruel 2 and unusual punishment. [Id. at 3-6.] He alleged mental and emotional 3 distress and seeks compensatory damages. [Id. at 6.] 4 On October 4, 2024, the Court screened the FAC pursuant to 28 U.S.C. 5 § 1915A(a)-(b)(1) and found that Plaintiff had not stated an official-capacity 6 claim against Defendants NeGrom, Hilfer, Sanchez and Rodriguez. [Dkt. No. 7 8.] A claim against any official in his or her official capacity is the same as a 8 suit against the employing agency—here, San Bernardino County. Monell v. 9 Dep’t of Social Services of City of New York,

, 690 n.55 (1978). 10 The FAC did not identify any San Bernardino County policy, regulation, or 11 custom that purportedly caused Plaintiff's injuries. [Id. at 4-5.] The FAC did 12 not allege any cognizable claims against Defendants NeGrom, Hilfer, Sanchez 13 and Rodriguez. Plaintiff was granted leave to file a Second Amended 14 Complaint. Plaintiff was advised that if wanted to pursue any official- capacity claims in an amended pleading, he must allege specific facts showing 15 that the County of San Bernardino had a policy, custom, or practice that 16 violated his Eighth Amendment rights and caused his injuries. [Id.] 17 On October 25, 2024, Plaintiff filed a Second Amended Complaint 18 (“SAC”), against Defendants NeGrom, Hilfer, Sanchez, and Rodriguez in their 19 official capacities. [Dkt. No. 9.] Plaintiff alleged that these Defendants 20 allowed him to be locked down in his cell at WVDC for more than 24 hours on 21 numerous occasions in violation of the Eighth Amendment’s prohibition 22 against cruel and unusual punishment. [Id. at 3-6.] Plaintiff alleged that 23 these Defendants have full knowledge of their actions “based on how tier time 24 is operated.” [Id. at 3-5.] He alleged mental and emotional distress and seeks 25 compensatory damages. [Id. at 6.] 26 On November 15, 2024, the Court screened the SAC. [Dkt. No. 10.] The 27 SAC failed to state an official-capacity claim against Defendants NeGrom, 28 1 Hilfer, Sanchez, and Rodriguez and did not identify any San Bernardino 2 County policy, regulation, or custom that purportedly caused Plaintiff's 3 injuries. [Id. at 3-5.] The SAC did not allege any facts addressing any such 4 policy and did not state any cognizable claims against Defendants NeGrom, 5 Hilfer, Sanchez or Rodriguez. The Court dismissed the SAC with leave to 6 amend. Plaintiff was again advised that if wanted to pursue any official- 7 capacity claims in an amended pleading, he must allege specific facts showing 8 that the County of San Bernardino had a policy, custom, or practice that 9 violated his Eighth Amendment rights and caused his injuries. The Court 10 permitted Plaintiff to file a Third Amended Complaint curing the defects no 11 later than December 16, 2024, and warned Plaintiff that failure to file a Third 12 Amended Complaint could “result in the dismissal of this action with or 13 without prejudice on the grounds above or for failure to diligently prosecute.” 14 [Id. at 5-6.] The deadline to file a Third Amended Complaint has passed, Plaintiff has not filed his Third Amended Complaint, and he has not 15 communicated with the Court since October 25, 2024. 16 On January 30, 2025, the Court ordered Plaintiff to show cause by 17 February 28, 2025 why the Court should not recommend that this action be 18 dismissed for failure to prosecute. [Dkt. No. 11.] To date, Plaintiff has not 19 responded to the Order to Show Cause or otherwise communicated with the 20 Court about his case. Accordingly, the case is now subject to dismissal for 21 Plaintiff’s failure to prosecute pursuant to Rule 41(b) of the Federal Rules of 22 Civil Procedure and Local Rule 41-1. 23 II. Dismissal Based on Failure to Prosecute 24 Rule 41(b) grants district courts the authority to dismiss an action on its 25 own motion for failure to prosecute. Link v. Wabash R.R. Co.,

, 26 629–30 (1962). In determining whether dismissal for lack of prosecution is 27 warranted, a court must weigh several factors, including: (1) the public’s 28 1 interest in expeditious resolution of litigation; (2) the court’s need to manage 2 its docket; (3) the risk of prejudice to defendants; (4) the availability of less 3 drastic sanctions; and (5) the public policy favoring the disposition of cases on 4 their merits. Pagtalunan v. Galaza,

(9th Cir. 2002); Ferdik 5 v. Bonzelet,

, 1260–61 (9th Cir. 1992). Dismissal is appropriate 6 under the foregoing analysis “where at least four factors support dismissal . . . 7 or where at least three factors ‘strongly’ support dismissal.” Hernandez v. 8 City of El Monte,

(9th Cir. 1998) (citations omitted). 9 Here, the first two factors—public interest in expeditious resolution of 10 litigation and the need to manage the Court’s docket—weigh in favor of 11 dismissal. Plaintiff has not filed his Third Amended Complaint. Plaintiff’s 12 failure to file a Third Amended Complaint or show good cause for his delay 13 prevents the Court from moving this case toward disposition and shows that 14 Plaintiff does not intend to litigate this action diligently. Arguably, the third factor—prejudice to Defendants—does not counsel 15 in favor of dismissal because no viable pleading exists, and thus Defendants 16 might be unaware that a case has been filed. However, the Ninth Circuit has 17 held that prejudice may be presumed from unreasonable delay. See In re 18 Eisen,

, 1452–53 (9th Cir. 1994); Moore v. Teflon Commc’ns Corp., 19

, 967–68 (9th Cir. 1978). Plaintiff’s inaction in this matter is an 20 unreasonable delay. In the absence of any explanation, non-frivolous or 21 otherwise, for Plaintiff’s delay, the Court presumes prejudice. See Laurino v. 22 Syringa Gen. Hosp.,

, 753 (9th Cir. 2002) (presumption of 23 prejudice can be rebutted by a non-frivolous explanation); Pagtalunan, 291 24 F.3d at 642 (citing Yourish v. Cal. Amplifier,

, 991 (9th Cir. 25 1999)). 26 The fourth factor—the availability of less drastic sanctions—ordinarily 27 counsels against dismissal. However, the Court attempted to avoid outright 28 ! | dismissal by giving Plaintiff ample time to communicate with the Court and 2 || file a Third Amended Complaint. Plaintiff was expressly warned that failure 3 || to comply with the Court’s orders could result in dismissal. [Dkt. Nos. 10, 11.] 4 || Thus, the Court explored the only meaningful alternatives to dismissal in its 5 || arsenal and found that they were not effective. See Henderson v. Duncan, 779 6 || F.2d 1421, 1424 (9th Cir. 1986) (“The district court need not exhaust every 7 || sanction short of dismissal before finally dismissing a case, but must explore 8 || possible and meaningful alternatives.”) (citation omitted). 9 The fifth factor—the general policy favoring resolution on the merits— 10 || ordinarily weighs against dismissal. Pagtalunan,

. It is, 11 || however, the responsibility of the moving party to move the case toward 12 || disposition on the merits at a reasonable pace and to refrain from dilatory and 13 || evasive tactics. Morris v. Morgan Stanley & Co.,

(9th Cir. 14 || 1991). Because Plaintiff has failed to participate in his own lawsuit, it does 15 || not appear that retention of this case would increase the likelihood of the 16 || matter being resolved on its merits. This factor does not weigh in favor of or 7 against dismissal. 18 In sum, four of the five factors support dismissal. The Court concludes 19 that dismissal for failure to prosecute is warranted. 20 Il. ORDER 51 For the foregoing reasons, this action is dismissed without prejudice for 9 failure to prosecute. 23 || Dated: April 30, 2025 24 KigQo Ad. . is 25 HONORABLE DALES. FISCHER UNITED STATES DISTRICT JUDGE 27 28