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2 JS-6 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE CENTRAL DISTRICT OF CALIFORNIA 11 12 Case No. CV 19-4597 VBF (MRW) 13 DEWAYNE BLANKS, ORDER DISMISSING ACTION 14 Petitioner, WITHOUT PREJUDICE 15 v. 16 KEN CLARK, Warden, 17 Respondent. 18

19 The Court grants the Attorney General’s unopposed motion to 20 dismiss this unexhausted habeas action. 21 * * * 22 1. Petitioner filed this habeas action under

to 23 challenge his state court conviction for robbery. (Docket # 1, 9 (amended 24 petition).) 25 2. The Attorney General moved to dismiss the action. (Docket # 26 17.) According to the Attorney General’s motion, Petitioner failed to 27 present any of his claims for review in the California Supreme Court before 28 1 initiating federal habeas review. The Attorney General sought to dismiss 2 the petition because it contained only unexhausted claims. (Id. at 4 (citing 3 Picard v. Connor,

(1971), and other authorities).) 4 3. Magistrate Judge Wilner issued an order informing Petitioner 5 of his obligation to respond to the motion (or, alternatively, to seek a stay of 6 the federal action). (Docket # 19.) Petitioner failed to respond to the 7 motion. Judge Wilner then issued an order to show cause why the motion 8 should not be granted as unopposed pursuant to Local Rule. (Docket # 20.) 9 The order to show cause expressly informed Petitioner that a further 10 failure to respond would lead to dismissal. Petitioner failed to respond to 11 the OSC, too. 12 * * * 13 4. Local Rule of Court 7-9 requires a party to file a memorandum 14 stating the basis for that party’s opposition to a motion. Local Rule 7-12 15 states that the “failure to file any required document [ ] may be deemed 16 consent to the granting or denial of the motion.” 17 5. Local Rule 7-12 warrants dismissal of the case. The Court 18 clearly informed Petitioner of this requirement in two previous orders. 19 Petitioner did not file a response that addressed the Attorney General’s 20 exhaustion argument. Petitioner’s failure to respond to the dismissal 21 motion signifies his consent to the dismissal of the action. 22 6. Moreover, Federal Rule of Civil Procedure 41(b) provides that if 23 a plaintiff “fails to prosecute or to comply with these rules or a court order, 24 a defendant may move to dismiss the action or any claim against it.” 25 Dismissal also may be ordered by the Court sua sponte. Link v. Wabash 26 R.R.,

(1962). To determine the appropriateness of a 27 28 1 dismissal under Rule 41(b), a district court should consider the following 2 factors: 3 (1) the public’s interest in expeditious resolution of 4 litigation; (2) the court’s need to manage its docket; 5 (3) the risk of prejudice to the other party; (4) the 6 public policy favoring the disposition of cases on their 7 merits; and (5) the availability of less drastic 8 sanctions. 9 Dreith v. Nu Image, Inc.,

(9th Cir. 2011); Carey v. King, 10

(9th Cir. 1988) (same). 11 7. As noted above, Petitioner failed to respond to the magistrate 12 judge’s orders regarding the action. That strongly suggests that he no 13 longer seeks a ruling on the merits of his habeas claims (factor 4). Dreith, 14

. By contrast, the public, the Attorney General, and the 15 Court all have a strong interest in dismissal of this case in light of 16 Petitioner’s conduct (factors 1-3). Finally, given Petitioner’s failure to file a 17 response to the Attorney General’s dismissal motion or Judge Wilner’s 18 orders, no sanction short of dismissal seems likely to encourage further 19 participation in the litigation (factor 5).

20 21 22 23 24 25 26 27 28 1 8. Therefore, the present action is hereby DISMISSED without 2 | prejudice. 3 4 IT 1S SO ORDERED. 5 6 71 Dated: February 7, 2020 [ble hiker (au boadhe 8 HON. VALERIE BAKER FAIRBANK 9 SENIOR U.S. DISTRICT JUDGE

10 Presented by: 11 | | 12 Li / 13 HON. MICHAEL R. WILNER 14 | UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28