Rivas v. M.C.C. San Diego et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
DAVID RIVAS,
BOP #14267-298,
Plaintiff,
vs.
MCC San Diego; JASON BURGANSON,
Correctional Officer,
Defendants.
Case No.: 25-cv-00806-AJB-BLM
ORDER DISMISSING CIVIL
ACTION FOR FAILING TO
STATE A CLAIM PURSUANT
TO 28 U.S.C. § 1915(e)(2)(B)(ii)
AND 28 U.S.C. § 1915A(b)(1)
AND FOR FAILING TO
PROSECUTE
Plaintiff 	David 	Rivas, 	proceeding 	without 	counsel 	while 	incarcerated 	at 	the
Metropolitan Correctional Center in San Diego, filed this civil action pursuant to Bivens v.
Six Unknown Named Federal Narcotic Agents, 403 U.S. 388 (1971), together with a motion
to proceed in forma pauperis (“IFP”). (See Doc. Nos. 1; 2.)
On October 17, 2025, the Court granted Plaintiff leave to proceed IFP but screened
and dismissed his complaint for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)
and 1915A(b). (Doc. No. 6.) While the Court noted Plaintiff’s Bivens claims against Officer
Burganson were “dead on arrival” and expressed doubt as to whether Plaintiff could
effectively amend them, it granted him 45 days leave in which to try. (See Doc. No. 6 at 13
(citing Harper v. Need, 71 F.4th 1181, 1187 (9th Cir. 2023)).) The Court also warned
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Plaintiff that if he failed to timely amend, a final judgment of dismissal would be entered
based both on his failure to state a claim and his failure to prosecute in compliance with
the Court’s Order. (Id. at 14–15 (citing Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir.
2005) (“If a plaintiff does not take advantage of the opportunity to fix his complaint, a
district court may convert the dismissal of the complaint into dismissal of the entire
action.”)).) More than a month has passed since Plaintiff’s amended complaint was due,
but he has failed to respond. Thus, for the reasons explained, the Court DISMISSES the
case.
I. 	FAILURE TO AMEND AND/OR PROSECUTE
The Court may sua sponte dismiss a case for lack of prosecution or failure to comply
with a court order. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); see
also Fed. R. Civ. P. 41(b) (providing for involuntary dismissal for failure to prosecute or
comply with the federal rules or court order). “The failure of the plaintiff eventually to
respond to the court’s ultimatum–either by amending the complaint or by indicating to the
court that [he] will not do so–is properly met with the sanction of a Rule 41(b) dismissal.”
Edwards v. Marin Park, 356 F.3d 1058, 1065 (9th Cir. 2004). “In determining whether to
dismiss a claim for failure to prosecute or failure to comply with a court order, the Court
must weigh the following 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
defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public
policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639,
642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260‒61 (9th Cir. 1992)).
Because the Court clearly informed Plaintiff of his need to timely amend, factors
one, two, and four weigh in favor of dismissal. See Ferdik, 963 F.2d at 1262 (“[A] district
court’s warning to a party that his [or her] failure to obey the court’s order will result in
dismissal can satisfy the ‘consideration of alternatives’ requirement.”); Henderson, 779
F.2d at 1424; Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (“[T]he
public’s 	interest 	in 	expeditious 	resolution 	of 	litigation 	always 	favors 	dismissal.”);
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Pagtalunan, 291 F.3d at 642 (“The trial judge is in the best position to determine whether
the delay in a particular case interferes with docket management and the public interest.”);
Nevijel v. North Coast Life Insurance Co., 651 F.2d 671, 674 (9th Cir. 1981) (a court is not
required to exhaust all alternatives prior to dismissal). Factor five also supports dismissal.
See In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 1217, 1227 (9th Cir.
2006) (the public policy favoring disposition on the merits does not weigh against dismissal
where plaintiff’s “conduct impedes progress in that direction”).
Finally, Plaintiff initiated this suit more than nine months ago but has failed to file
any pleading sufficient to survive initial screening, and no defendant has been served. See
Fed. R. Civ. P. 4(c). “A federal court is without personal jurisdiction over a defendant
unless the defendant has been served in accordance with Fed. R. Civ. P. 4.” Crowley v.
Bannister, 734 F.3d 967, 974–75 (9th Cir. 2013) (citations omitted); see also Flores v.
Velocity Express, LLC, No. 12-CV-05790-JST, 2017 WL 3477081, at *2 (N.D. Cal. Aug.
11, 2017) (dismissing civil action for failure to prosecute where plaintiff’s failure to
communicate for nearly four months “indicate[d] [] he ha[d] no interest in pursuing his
claims”).
Thus, while the “pendency of a lawsuit is not sufficiently prejudicial in and of itself
to warrant dismissal,” Pagtalunan, 291 F.3d at 642, when taken together, the Court finds
the weight of the Ferdik factors support dismissal and the entry of final judgment pursuant
to Fed. R. Civ. P. 41(b) is now warranted. See Hernandez v. City of El Monte, 138 F.3d
393, 399 (9th Cir. 1998) (“We may affirm a dismissal where at least four factors support
dismissal, or where at least three factors ‘strongly’ support dismissal.”) (quoting Ferdik,
963 F.2d at 1263).
II. 	CONCLUSION
For the reasons explained, the Court DISMISSES this civil action based on
Plaintiff’s failure to state a claim upon which relief may be granted pursuant to 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(b)(1) and his failure to amend as required by the Court’s
October 17, 2025 Order. The Court further CERTIFIES that an IFP appeal would not be
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taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). The Court DIRECTS the Clerk of
Court to enter a final judgment of dismissal and close the file.
IT IS SO ORDERED.
Dated: January 13, 2026
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