Anthony Edward Herr v. Sgt Wheeler, 5:17-cv-00286

Pro se plaintiff Anthony Edward Herr filed a 42 U.S.C. § 1983 action in California state court; the case was removed to federal court by defendants including the San Bernardino County Sheriff’s Department and Sergeant Wheeler.
The original complaint was dismissed without prejudice on April 19, 2017, with leave to amend.
Herr filed a First Amended Complaint naming only Sergeant Wheeler; Wheeler moved to dismiss and the Magistrate dismissed the FAC without prejudice, granting leave to file a Second Amended Complaint (SAC) by October 21, 2017 and warning that failure to comply could lead to dismissal.
Herr did not file an SAC, request an extension, or respond to a subsequent Order to Show Cause; the Magistrate issued the show-cause order and set a November 17, 2017 response deadline, which Herr missed.
The court applied the Ninth Circuit Carey factors for dismissal for failure to prosecute, found dismissal appropriate because Herr gave no excuse and lesser sanctions would not be effective, and dismissed the action with prejudice under Fed. R. Civ. P. 41(b).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether dismissal for failure to prosecute is warranted	Herr did not file a response or SAC; no argument presented	Wheeler argued dismissal appropriate after failure to comply with court orders and deadlines	Court dismissed action with prejudice for prolonged failure to prosecute and failure to comply with orders
Whether plaintiff’s pro se status excuses noncompliance	Herr offered no showing that pro se status justified delay	Wheeler relied on prior warnings and procedural default	Court held pro se status does not excuse compliance with rules and orders
Whether defendants are prejudiced by delay	Herr made no showing to rebut presumption of prejudice	Wheeler asserted delay prevented case progress	Court found a rebuttable presumption of prejudice which Herr failed to rebut
Whether lesser sanctions would suffice	No request from Herr for alternative relief	Wheeler implicitly relied on dismissal as appropriate sanction	Court concluded no lesser sanction would be effective and dismissed with prejudice

Carey v. King, 856 F.2d 1439 (9th Cir. 1988) (sets multifactor test for dismissal for failure to prosecute)
Pagtalunan v. Galazas, 291 F.3d 639 (9th Cir. 2002) (public interest and docket management support dismissal)
Yourish v. California Amplifier, 191 F.3d 983 (9th Cir. 1999) (prejudice and docket-management considerations in dismissal analysis)
Ash v. Svetkov, 739 F.3d 493 (9th Cir. 2014) (court’s need to manage docket and effect of delay)
Anderson v. Air West, Inc., 542 F.2d 522 (9th Cir. 1976) (failure to prosecute can alone justify dismissal)
Morris v. Morgan Stanley & Co., 942 F.2d 648 (9th Cir. 1991) (delay and prejudice analysis)
In re PPA Prods. Liab. Lit., 460 F.3d 1217 (9th Cir. 2006) (limited weight of merits-resolution policy when plaintiff impedes progress)