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5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 DAVID KROLL, Case No. 2:19-cv-08359-JVS (SHK) 11 Plaintiff, ORDER DENYING REQUST TO 12 PROCEED IN FORMA PAUPERIS v. AND DISMISSING ACTION FOR 13 FAILURE TO PROSECUTE MCNICKLES, 14 Defendant. 15

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17 I. BACKGROUND AND SUMMARY OF ORDER 18 On September 27, 2019, the Court received Plaintiff David Kroll’s 19 (“Plaintiff”), civil rights Complaint under

(“Complaint” or 20 “Compl.”). Electronic Case Filing Number (“ECF No.”) 1, Compl. Plaintiff, 21 proceeding pro se, requested to proceed in forma pauperis (“IFP Request”). ECF 22 No. 2, IFP Request. In Plaintiff’s IFP Request, he used the inmate IFP form and 23 attached a certified copy of his prison trust account and an authorization for 24 disbursement of funds, but Plaintiff also listed a personal mailing address. See id.; 25 ECF No. 1, Compl. at 1-2. Thus, Plaintiff’s custodial status was unclear because 26 the content of Plaintiff’s IRP request suggested that Plaintiff was an inmate, while 27 Plaintiff’s listed address was not that of an incarcerated person. The Court, 1 the results yielded no records matching that criteria that showed Plaintiff is in 2 custody. 3 Because Plaintiff’s custodial status was unclear, the Court issued a Minute 4 Order on October 2, 2019, requiring Plaintiff, within thirty days, to either: (1) 5 inform the Court that his previously-submitted information did not change (in 6 other words, affirm that he is still incarcerated); (2) submit a new IFP request using 7 the Court’s CV-60 Form for non-prisoners if Plaintiff’s custody status changed; or 8 (3) pay the full $400.00 filing fee (“Order re IFP Request”). ECF No. 4, Order re 9 IFP Request at 2. The Court cautioned that “failure to keep the Court appraised of 10 any change of address or to timely submit his updated information will result in” a 11 recommendation that the Court deny Plaintiff’s IFP Request and dismiss the 12 action, without prejudice, for failure to prosecute and follow Court Orders.

13 Plaintiff did not respond. 14 On December 4, 2019, the Court issued another Order to Show Cause 15 (“OSC”) why the case should not be dismissed for failure to prosecute and provide 16 the Court with further information as previously ordered. ECF No. 5, OSC. In it, 17 the Court ordered Plaintiff to either: (1) pay the full $400.00 filing fee; (2) submit a 18 new IFP request if Plaintiff is not in custody; or (3) show cause, in writing, why 19 Plaintiff is unable to do so.

The Court provided Plaintiff thirty days—until 20 January 3, 2020—to comply with Court orders and to participate in the litigation. 21

The Court again cautioned Plaintiff that failure to timely comply with the OSC 22 may result in denial of his IFP Request and “will result in the Magistrate Judge 23 recommending that the matter be dismissed for failure to prosecute.”

24 As of January 15, 2020, Plaintiff has not filed any response. Considering 25 Plaintiff’s failure to prosecute this matter diligently and follow Court orders as 26 discussed more fully below, the Court DENIES Plaintiff’s IFP Request and 27 DISMISSES Plaintiff’s action, without prejudice, under Federal Rule of Civil 1 II. DISCUSSION 2 A. Plaintiff’s Action Is Dismissed For Failure To Prosecute And 3 Follow Court Orders. 4 1. Applicable Law 5 Federal Rule of Civil Procedure 41(b) provides that “[i]f the plaintiff fails to 6 prosecute or to comply with these rules or a court order, a defendant may move to 7 dismiss the action or any claim against it.” Fed. R. Civ. P. 41(b). “A dismissal for 8 lack of prosecution must be supported by a showing of unreasonable delay.” 9 Henderson v. Duncan,

(9th Cir. 1986). It is well-settled, 10 however, that the Court has the “inherent power” to dismiss an action under Rule 11 41(b) due to a plaintiff’s failure to prosecute or comply with a court order. Link v. 12 Wabash R.R. Co.,

(1962) (citation omitted); Henderson, 779 13 F.2d at 1425. Similarly, the Local Rules of the Central District of California permit 14 courts to dismiss civil suits “which have been pending for an unreasonable period 15 of time without any action[.]” L.R. 41-1. 16 In deciding whether to dismiss for failure to prosecute or to comply with a 17 Court order, the Court considers five factors: “(1) the public’s interest in 18 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) 19 the risk of prejudice to the defendants; (4) the public policy favoring disposition of 20 cases on their merits; and (5) the availability of less drastic sanctions.” Henderson, 21

(citing Ash v. Cvetkov,

(9th Cir. 1984)). 22 2. Analysis 23 Here, four of the five factors weigh in favor of dismissal. The first two 24 factors—the public’s interest in expeditious resolution of litigation and the Court’s 25 need to manage its docket—weigh in favor of dismissal. Plaintiff’s failure to file 26 response to either of the Court’s Orders, ECF Nos. 4-5, hinders the complete 27 development of the record and affects Plaintiff’s ability to properly pursue this 1 months, to file a response, yet Plaintiff has failed to do so. Accordingly, litigation of 2 this matter, and this Court’s management of its docket, has been, and will continue 3 to be, delayed. See Ash,

(a district court is in the best position “to 4 determine what period of delay can be endured before its docket becomes 5 unmanageable” and “to decide when delay in a particular case interferes with 6 docket management and the public interest.”). 7 The third factor—prejudice to Defendant—does not weigh in favor of 8 dismissal. Generally, there is a rebuttable presumption of injury upon the 9 defendant when the plaintiff unreasonably delays his or her prosecution of an 10 action. In re Eisen,

(9th Cir. 1994). However, here, 11 Defendant McNickles has not yet been served because the Court is at the screening 12 stage (i.e., before service on Defendants). Consequently, Defendant has not been 13 prejudiced. Nevertheless, the other factors combine to weigh in favor of dismissal. 14

(“[T]he failure to prosecute diligently is sufficient by itself to justify a dismissal, 15 even in the absence of a showing of actual prejudice to the defendant[.]” (citation 16 omitted)). 17 The fourth factor—public policy favoring deciding cases on the merits— 18 ordinarily weighs against dismissal. However, it is Plaintiff’s responsibility to move 19 his action toward a disposition at a reasonable pace, while avoiding dilatory and 20 evasive tactics. Morris v. Morgan Stanley & Co.,

(9th Cir. 1991). 21 Plaintiff has not fulfilled his responsibility of timely responding to Court orders 22 and, consequently, has prevented the progression of this action toward resolution. 23 Under such circumstances, the policy which favors resolution on the merits does 24 not outweigh Plaintiff’s failure to prosecute or obey this Court’s orders. See

25 The fifth factor—availability of less drastic sanctions—also weighs in favor 26 of dismissal. Although dismissal may appear to be a drastic sanction, the Court 27 cannot dispose of Plaintiff’s action without his compliance with the Court’s orders. 1 | conclusion that Plaintiff is unwilling to continue prosecuting this action. 2 | Nonetheless, the Court dismisses this case without prejudice to afford Plaintiff 3 | another opportunity to properly pursue his legal claim at a later time should he 4 | choose to do so then. Consequently, no less drastic sanctions are available here. 5 Accordingly, because the factors weigh in favor of dismissal and demonstrate 6 | an unreasonable delay, this action is dismissed for failure to prosecute this action. 7 Il. ORDER 8 Accordingly, IT IS HEREBY ORDERED that Plaintiff’ s IFP Request be 9 | DENIED and this action be DISMISSED, without prejudice. 10 11 12 A , 7

14 Dated: January 17, 2020 ee 15 nited States District Judge 16 | Presented by: 17 18 Wes 19 | HONORABLE SHASHI H. KEWALRAMANI United States Magistrate Judge 21 22 23 24 25 26 27 28