1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Toby Bolden Williams, 

Plaintiff, 

v. 

Yuma Police Department, et al., 

Defendants. 

 No. CV 18-00884-PHX-DGC (CDB) 

ORDER 

On March 27, 2019, the Court issued an order giving Plaintiff one month to file an 

amended complaint with respect to his dismissed claims against Defendants City of Yuma, 

Yuma County, and City of Somerton, and to show cause why Defendants Binuya and Villa 

should not be dismissed for failure to serve process on them. Doc. 141 at 21-22. Plaintiff 

has filed no amended complaint, and his response to the Court’s order to show cause 

provides no explanation for the lack of service of process. Doc. 146. The Court will 

dismiss this action with prejudice for failure to prosecute. 

Plaintiff has the duty to prosecute his case even though he is proceeding pro se. See 

Fidelity Phila. Trust Co. v. Pioche Mines Consol., Inc., 587 F.2d 27, 29 (9th Cir. 1978). 

Rule 41(b) provides for the dismissal of an action “[i]f the plaintiff fails to prosecute or to 

comply with these rules or a court order[.]” Fed. R. Civ. P. 41(b); see also Link v. Wabash 

R.R., 370 U.S. 626, 629-31 (1962) (recognizing that a district court has inherent power to 

dismiss a case sua sponte for failure to prosecute). A dismissal under Rule 41(b) generally 

is with prejudice. See Fed. R. Civ. P. 41(b). 
- 2 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

In determining whether a plaintiff’s failure to prosecute or comply with an order 

warrants dismissal of the case, the district court must weigh five factors: “(1) the public’s 

interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 

(3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 

cases on their merits; and (5) the availability of less drastic sanctions.” Carey v. King, 856 

F.2d 1439, 1440 (9th Cir. 1988) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th 

Cir. 1986)). 

The first two factors “favor the imposition of sanctions in most cases,” including 

this one. Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir. 1990). Plaintiff’s failure to 

amend the complaint and serve process has “caused ‘the action to come to a complete halt’ 

and ha[s] allowed [Plaintiff] to control the pace of the docket rather than the Court.” 

Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999); see Richardson v. Cty. of 

Santa Barbara Jail, No. CV 09-3373 DMG FFM, 2010 WL 4796457, at *2 (C.D. Cal. Mar. 

8, 2010); Wolff v. California, 318 F.R.D. 627, 631 (C.D. Cal. 2016) (“Plaintiff’s inaction 

hinders the Court’s ability to move this case toward disposition and indicates that Plaintiff 

does not intend to litigate this action diligently. . . . As a result, the Court's need to manage 

its docket favors dismissal.”). The third factor – prejudice to Defendants – also supports 

dismissal. See Yourish, 191 F.3d at 991-92 (the delay caused by the plaintiff’s failure to 

timely amend was sufficient prejudice to the defendants); Wolff, 318 F.R.D. at 631 

(“Plaintiff’s delay in prosecuting this case and obeying the Courts orders is unreasonable, 

and the risk of prejudice strongly weighs in favor of dismissal.”). The fourth factor – the 

preference for deciding cases on their merits – always weighs against dismissal. 

The fifth factor requires the Court to consider whether a less drastic alternative is 

available. The Court granted Plaintiff’s request to amend the complaint and gave him 30 

days to do so (Doc. 141 at 18), but Plaintiff has not filed an amended pleading. Nor has he 

served process on Defendants Binuya and Villa. Rather, Plaintiff filed a response to the 

order to show cause accusing the Court of going out of its way to summarily dismiss his 
- 3 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

claims. Doc. 146 at 2. But the Court explained its reasons for the dismissal and granted 

Plaintiff leave to cure deficiencies in the complaint. 

Balancing the factors identified in Carey, the Court concludes that dismissal of this 

action is warranted. See Yourish, 191 F.3d at 992 (“Because we have found that three 

factors strongly favor dismissal, we feel that the district court did not abuse its discretion 

in dismissing Plaintiffs’ case for failing to amend in a timely fashion.”).

 IT IS ORDERED:

1. This action is dismissed with prejudice pursuant to Rule 41(b) of the 

Federal Rules of Civil Procedure. 

2. The Clerk is directed to terminate this action. 

Dated this 2nd day of May, 2019.