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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 BRAYAN MARTIN MEZA, Case No. 2:19-cv-10297-FMO-KES

12 Plaintiff,

13 v. ORDER DIS MISSING ACTION WITHOUT PREJUDICE FOR 14 DEAN BORDERS, et al., FAILURE TO PROSECUTE

15 Defendants.

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18 I.

19 BACKGROUND

20 In December 2019, Brayan Martin Meza (“Plaintiff”), an inmate housed at 21 the California Institute for Men in Chino (“CIM”), filed a civil rights complaint 22 under

against two CIM staff members: (1) Dean Borders, the 23 warden, and (2) correctional officer (“CO”) S. Lopez-Briseno. (Dkt. 1.) The Court 24 screened the complaint sua sponte in compliance with the Prison Litigation Reform 25 Act and, on January 23, 2020, dismissed it for failure to state a claim. (Dkt. 7.) 26 The Court gave Plaintiff until February 21, 2020 to file a First Amended Complaint 27 (“FAC”). (Id. at 4.) 28 1 On January 27, 2020, the Court granted Plaintiff leave to proceed in forma 2 pauperis (“IFP”). (Dkt. 9.) As of the date of this order, Plaintiff has neither filed a 3 FAC nor requested an extension of time to do so. 4 II. 5 DISCUSSION 6 A. Legal Standard. 7 It is well-established that a district court may dismiss an action for failure to 8 prosecute, failure to follow court orders, or failure to comply with the federal or 9 local rules. See Fed. R. Civ. P. 41(b); Link v. Wabash R. Co.,

, 629- 10 30 (1962); Ghazali v. Moran,

(9th Cir. 1995) (per curiam). Local 11 Rule 41-1 provides that “[c]ivil suits which have been pending for an unreasonable 12 period of time without any action having been taken therein may, after notice, be 13 dismissed for want of prosecution.” 14 In determining whether to dismiss a case for failure to prosecute or failure to 15 comply with court orders, a district court must consider the following five factors: 16 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 17 to manage its docket; (3) the risk of prejudice to Defendants; (4) the availability of 18 less drastic sanctions; and (5) the public policy favoring disposition of cases on 19 their merits. See In re Phenylpropanolamine (PPA) Prods. Liab. Litig.,

(9th Cir. 2006). The test is not “mechanical,” but provides 21 a “non-exhaustive list of things” to “think about.” Valley Eng’rs v. Elec. Eng’g 22 Co.,

(9th Cir. 1998). 23 B. Analysis. 24 Here, the first two factors favor dismissal. The first factor—the public’s 25 interest in the expeditious resolution of litigation—“always favors dismissal.” 26 Yourish v. Cal. Amplifier,

, 990 (9th Cir. 1999). The second factor— 27 the Court’s need to manage its docket—favors dismissal here because Petitioner’s 28 “noncompliance has caused [this] action to come to a complete halt, thereby 1 allowing [him] to control the pace of the docket rather than the Court.” Id. (internal 2 quotations marks omitted). 3 The third factor—prejudice to Defendants—weighs in favor of dismissal, 4 although perhaps not as strongly as some of the other factors. Because this Court 5 dismissed the complaint on screening, Defendants have not been served. See 6 Pagtalunan v. Galaza,

(9th Cir. 2002) (“[T]he government has 7 not been ordered to respond to Pagtalunan’s habeas petition. We have previously 8 recognized that pendency of a lawsuit is not sufficiently prejudicial in and of itself 9 to warrant dismissal.”); Hunter v. Sandoval, No. 17-cv-09257-CJC-SHK, 2018

at *5,

at *2 (C.D. Cal. Dec. 12, 2018) 11 (finding no prejudice to a defendant who had not yet been served). On the other 12 hand, a rebuttable presumption of prejudice to the defendants arises when a 13 plaintiff unreasonably delays prosecution of an action, In re Eisen,

, 14 1452-53 (9th Cir. 1994), and unnecessary delay “inherently increases the risk that 15 witnesses’ memories will fade and evidence will become stale.” Pagtalunan, 291 16 F.3d at 643. 17 The fourth factor—availability of less drastic sanctions—favors dismissal. 18 The Court granted Plaintiff leave to amend his complaint or to file a notice of 19 intent to proceed with the Complaint, and warned him that failing to exercise one 20 of those two options could result in dismissal for lack of diligent prosecution. See 21 Ferdik v. Bonzelet,

(9th Cir. 1992) (“[A] district court’s 22 warning to a party that his failure to obey the court’s order will result in dismissal 23 can satisfy the ‘consideration of alternatives’ requirement.”) (citation omitted). 24 The fifth factor—public policy favoring a disposition of an action on its 25 merits—is the only factor that arguably weighs against dismissal here. Pagtalunan, 26

. However, the effect of this factor is somewhat mitigated because, 27 as discussed in the order dismissing the complaint with leave to amend, Plaintiff 28 has currently failed to state a claim. (See Dkt. 7 [finding that the complaint did not 1 plead sufficient facts to state an Eighth Amendment failure-to-protect claim against 2 CO Lopez-Briseno or Warden Borders].) 3 Given that the enumerated factors largely support dismissal, it is 4 recommended that this action be dismissed pursuant to Rule 41(b) and Local Rule 5 41-1. The Court has discretion to dismiss an action under Rule 41(b) with or 6 without prejudice. See Fed. R. Civ. P. 41(b) (“Unless the dismissal order states 7 otherwise,” a dismissal pursuant to Federal Rule of Civil Procedure 41(b) operates 8 as an adjudication on the merits absent exceptions that are not relevant here.); Local 9 Rule 41-2 (“Unless the Court provides otherwise, any dismissal pursuant to [Local 10 Rule] 41-1 shall be without prejudice.”); Al-Torki v. Kaempen,

, 1385 11 (9th Cir. 1996). Considering all of the circumstances, the action should be 12 dismissed in its entirety without prejudice. 13 // 14 // 15 // 16 // 17 // 18 // 19 // 20 21 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: March 19, 2020 7 /s/ FERNANDO M. OLGUIN 6 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