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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 JOSE JOAQUIN LOPEZ, Case No. 2:19-cv-02302-AB-KES

12 Plaintiff,

13 v. ORDER DIS MISSING ACTION WITHOUT PREJUDICE FOR 14 LOS ANGELES COUNTY FAILURE TO PROSECUTE

15 SHERIFF’S DEPT., et al.,

16 Defendants.

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19 I.

20 BACKGROUND 21 In March 2019, Jose Joaquin Lopez (“Plaintiff”), an inmate in the custody of 22 California, filed a civil rights complaint under

against the Los 23 Angeles County Sheriff’s Department and St. Francis Medical Center. (Dkt. 1.) 24 The Court screened the complaint sua sponte in compliance with the Prison 25 Litigation Reform Act and, on June 25, 2019, dismissed it for failure to state a 26 claim. (Dkt. 10.) The Court gave Plaintiff until July 25, 2019 to file a First 27 Amended Complaint. (Id. at 5.) 28 1 Plaintiff requested, and the Court granted, two extensions of this deadline, 2 ultimately extending it to December 27, 2019. (Dkt. 11, 12, 13, 14.) 3 On January 15, 2020, having received no further filings from Plaintiff, the 4 Court issued an order to show cause (“OSC”) why this action should not be 5 dismissed for lack of prosecution and/or failure to follow the Court’s orders. (Dkt. 6 15.) The Court warned Plaintiff that a failure to respond to the OSC might result in 7 dismissal. (Id. at 2.) As of the date of this order, Plaintiff has not responded to the 8 OSC. 9 II. 10 DISCUSSION 11 A. Legal Standard 12 It is well-established that a district court may dismiss an action for failure to 13 prosecute, failure to follow court orders, or failure to comply with the federal or 14 local rules. See Fed. R. Civ. P. 41(b); Link v. Wabash R. Co.,

, 629- 15 30 (1962); Ghazali v. Moran,

(9th Cir. 1995) (per curiam). Local 16 Rule 41-1 provides that “[c]ivil suits which have been pending for an unreasonable 17 period of time without any action having been taken therein may, after notice, be 18 dismissed for want of prosecution.” 19 In determining whether to dismiss a case for failure to prosecute or failure to 20 comply with court orders, a district court must consider the following five factors: 21 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 22 to manage its docket; (3) the risk of prejudice to Defendants; (4) the availability of 23 less drastic sanctions; and (5) the public policy favoring disposition of cases on 24 their merits. See In re Phenylpropanolamine (PPA) Prods. Liab. Litig.,

(9th Cir. 2006). The test is not “mechanical,” but provides 26 a “non-exhaustive list of things” to “think about.” Valley Eng’rs v. Elec. Eng’g 27 Co.,

(9th Cir. 1998). 28 1 B. Analysis 2 Here, the first two factors favor dismissal. The first factor—the public’s 3 interest in the expeditious resolution of litigation—“always favors dismissal.” 4 Yourish v. Cal. Amplifier,

, 990 (9th Cir. 1999). The second factor— 5 the Court’s need to manage its docket—favors dismissal here because Petitioner’s 6 “noncompliance has caused [this] action to come to a complete halt, thereby 7 allowing [him] to control the pace of the docket rather than the Court.” Id. (internal 8 quotations marks omitted). 9 The third factor—prejudice to Defendants—weighs in favor of dismissal, 10 although perhaps not as strongly as some of the other factors. Because this Court 11 dismissed the complaint on screening, Defendants have not been served. See 12 Pagtalunan v. Galaza,

(9th Cir. 2002) (“[T]he government has 13 not been ordered to respond to Pagtalunan’s habeas petition. We have previously 14 recognized that pendency of a lawsuit is not sufficiently prejudicial in and of itself 15 to warrant dismissal.”); Hunter v. Sandoval, No. 17-cv-09257-CJC-SHK, 2018

at *5,

at *2 (C.D. Cal. Dec. 12, 2018) 17 (finding no prejudice to a defendant who had not yet been served). On the other 18 hand, a rebuttable presumption of prejudice to the defendants arises when a 19 plaintiff unreasonably delays prosecution of an action, In re Eisen,

, 20 1452-53 (9th Cir. 1994), and unnecessary delay “inherently increases the risk that 21 witnesses’ memories will fade and evidence will become stale.” Pagtalunan, 291 22 F.3d at 643. 23 The fourth factor—availability of less drastic sanctions—favors dismissal. 24 The Court granted Plaintiff two extensions of time to amend his complaint, gave 25 him an opportunity to respond to the OSC, and warned him that failing to respond 26 to the OSC might result in dismissal. See Ferdik v. Bonzelet,

, 1262 27 (9th Cir. 1992) (“a district court’s warning to a party that his failure to obey the 28 court’s order will result in dismissal can satisfy the ‘consideration of alternatives’ 1 requirement”) (citation omitted). 2 The fifth factor—public policy favoring a disposition of an action on its 3 merits—is the only factor that arguably weighs against dismissal here. Pagtalunan 4 v. Galaza,

(9th Cir. 2002). However, the effect of this factor is 5 somewhat mitigated because, as discussed in the order dismissing the complaint 6 with leave to amend, Plaintiff has currently failed to state a claim. (See Dkt. 10 7 [finding that the complaint did not include: (a) any allegations that the sheriff’s 8 department had a custom, policy, or practice that led to the alleged violation of his 9 constitutional rights; (b) any factual allegations indicating how the medical center 10 allegedly violated his rights; or (c) any allegations demonstrating that the medical 11 center was acting under color of law].) 12 Given that the enumerated factors largely support dismissal, it is 13 recommended that this action be dismissed pursuant to Rule 41(b) and Local Rule 14 41-1. The Court has discretion to dismiss an action under Rule 41(b) with or 15 without prejudice. See Fed. R. Civ. P. 41(b) (“[u]nless the dismissal order states 16 otherwise,” a dismissal pursuant to Federal Rule of Civil Procedure 41(b) operates 17 as an adjudication on the merits absent exceptions that are not relevant here); Local 18 Rule 41-2 (“[u]nless the Court provides otherwise, any dismissal pursuant to [Local 19 Rule] 41-1 shall be without prejudice”); Al-Torki v. Kaempen,

, 1385 20 (9th Cir. 1996). Considering all of the circumstances, the action should be 21 dismissed in its entirety without prejudice. 22 // 23 // 24 // 25 // 26 // 27 // 28 // 1 III. 2 CONCLUSION 3 IT IS THEREFORE ORDERED that Judgment will be entered dismissing 4 | this action without prejudice for failure to prosecute. 5 6 | DATED: 3/16/2020 (yd g ANDRE BIROTTE JR. 9 UNITED STATES DISTRICT JUDGE

10 | Presented by: Flouns, Seat 12 | KAREN E. SCOTT 13 | United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28