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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 ANTHONY SPOSATO, Case No. 5:20-cv-00835-SVW-KES

12 Plaintiff,

13 v. ORDER DIS MISSING ACTION WITHOUT PREJUDICE FOR 14 MONA HOUSTON, Warden, et al., FAILURE TO PROSECUTE

15 Defendants.

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18 I.

19 BACKGROUND

20 In April 2020, Anthony Sposato (“Plaintiff”), an inmate in the custody of 21 California Department of Corrections and Rehabilitation (“CDCR”), filed a civil 22 rights complaint under

against prison officials. (Dkt. 1.) Plaintiff 23 alleged that his constitutional rights were violated by CDCR medical professionals 24 who failed to diagnose him with cancer until it reached stage four. (Id.) 25 The Court screened the complaint sua sponte in compliance with the Prison 26 Litigation Reform Act and, on April 23, 2020, dismissed it for failure to state a 27 claim. (Dkt. 10.) The Court gave Plaintiff until May 22, 2020 to file a First 28 1 Amended Complaint. (Id. at 5.) Plaintiff requested, and the Court granted, an 2 extension of this deadline to August 22, 2020. (Dkt. 13.) 3 On September 9, 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 14.) The Court warned Plaintiff that a failure to respond to the OSC might result in 7 dismissal. (Id. at 2.) On October 9, 2020, the copy of the OSC sent to Plaintiff was 8 returned to the Court as undeliverable. (Dkt. 15.) 9 As of the date of this order, Plaintiff has not responded to the OSC. Based on 10 public records, it appears that he was granted parole and released from custody. 11 See CDCR Inmate Locator, https://inmatelocator.cdcr.ca.gov/ (showing no inmate 12 in custody with Plaintiff’s name or identification number); CDCR Parole Suitability 13 Hearing Results, https://www.cdcr.ca.gov/bph/2020/05/20/hearing-results-april- 14 2020/ (showing Plaintiff was found suitable for parole in April 2020). 15 II. 16 DISCUSSION 17 A. Legal Standard 18 It is well-established that a district court may dismiss an action for failure to 19 prosecute, failure to follow court orders, or failure to comply with the federal or 20 local rules. See Fed. R. Civ. P. 41(b); Link v. Wabash R. Co.,

, 629- 21 30 (1962); Ghazali v. Moran,

(9th Cir. 1995) (per curiam). 22 In determining whether to dismiss a case for failure to prosecute or failure to 23 comply with court orders, the Ninth Circuit has instructed district courts to consider 24 the following five factors: (1) the public’s interest in expeditious resolution of 25 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 26 defendants; (4) the availability of less drastic sanctions; and (5) the public policy 27 favoring disposition of cases on their merits. In re Phenylpropanolamine (PPA) 28 Prods. Liab. Litig.,

(9th Cir. 2006). The test is not 1 “mechanical,” but provides a “non-exhaustive list of things” to “think about.” 2 Valley Eng’rs v. Elec. Eng’g Co.,

(9th Cir. 1998). 3 Local Rule 41-1 provides, “Civil suits which have been pending for an 4 unreasonable period of time without any action having been taken therein may, 5 after notice, be dismissed for want of prosecution.”1 Local Rule 41-6 provides: 6 A party proceeding pro se shall keep the Court and opposing parties 7 apprised of such party’s current address and telephone number, if any, 8 and e-mail address, if any. If mail directed by the Clerk to a pro se 9 plaintiff’s address of record is returned undelivered by the Postal 10 Service, and if, within fifteen (15) days of the service date, such 11 plaintiff fails to notify, in writing, the Court and opposing parties of 12 said plaintiff’s current address, the Court may dismiss the action with 13 or without prejudice for want of prosecution. 14 B. Analysis 15 Here, the first two factors favor dismissal. The first factor—the public’s 16 interest in the expeditious resolution of litigation—“always favors dismissal.” 17 Yourish v. Cal. Amplifier,

, 990 (9th Cir. 1999). The second factor— 18 the Court’s need to manage its docket—favors dismissal here because Plaintiff’s 19 “noncompliance has caused [this] action to come to a complete halt, thereby 20 allowing [him] to control the pace of the docket rather than the Court.” Id. (internal 21 quotations marks omitted). 22 The third factor—prejudice to Defendants—weighs in favor of dismissal, 23 although not as strongly as some of the other factors. Because this Court dismissed 24 the complaint on screening, Defendants have not been served. See Pagtalunan v. 25 Galaza,

(9th Cir. 2002) (“[T]he government has not been 26

27 1 The Local Rules of the U.S. District Court for the Central District of California are available online at: https://www.cacd.uscourts.gov/court-procedures/local-rules. 28 1 ordered to respond to Pagtalunan’s habeas petition. We have previously recognized 2 that pendency of a lawsuit is not sufficiently prejudicial in and of itself to warrant 3 dismissal.”); Hunter v. Sandoval, No. 17-cv-09257-CJC-SHK, 2018 U.S. Dist.

at *5,

at *2 (C.D. Cal. Dec. 12, 2018) (finding 5 no prejudice to a defendant who had not yet been served). On the other hand, a 6 rebuttable presumption of prejudice to defendants arises when a plaintiff 7 unreasonably delays prosecution of an action, In re Eisen,

, 1452-53 8 (9th Cir. 1994), and unnecessary delay “inherently increases the risk that 9 witnesses’ memories will fade and evidence will become stale.” Pagtalunan, 291 10 F.3d at 643. 11 The fourth factor—availability of less drastic sanctions—favors dismissal. 12 The Court granted Plaintiff an extension of time to amend his complaint, gave him 13 an opportunity to respond to the OSC, and warned him that failing to respond to 14 the OSC might result in dismissal. See Ferdik v. Bonzelet,

, 1262 15 (9th Cir. 1992) (“a district court’s warning to a party that his failure to obey the 16 court’s order will result in dismissal can satisfy the ‘consideration of alternatives’ 17 requirement”) (citation omitted). 18 The fifth factor—public policy favoring a disposition of an action on its 19 merits—is the main factor that arguably weighs against dismissal here. Pagtalunan 20 v. Galaza,

(9th Cir. 2002). However, the effect of this factor is 21 somewhat mitigated because, as discussed in the order dismissing the complaint 22 with leave to amend, Plaintiff has currently failed to state a claim. (See Dkt. 10 23 [finding that some of Plaintiff’s claims violated Federal Rule of Civil Procedure 8 24 because Plaintiff did not explain when or how he interacted with each medical 25 professional; also finding that some claims were barred by Eleventh Amendment 26 immunity, failed to explain the involvement of defendants who were supervisors, 27 and appeared to be unexhausted].) 28 Given that the enumerated factors largely support dismissal, it is 1 | recommended that this action be dismissed pursuant to Rule 41(b) and Local Rule 2 | 41-1. The Court has discretion to dismiss an action under Rule 41(b) with or 3 | without prejudice. See Fed. R. Civ. P. 41(b) (“[u]nless the dismissal order states 4 | otherwise,” a dismissal pursuant to Federal Rule of Civil Procedure 41(b) operates 5 | as an adjudication on the merits absent exceptions that are not relevant here); Local 6 | Rule 41-2 (“[uJnless the Court provides otherwise, any dismissal pursuant to [Local 7 | Rule] 41-1 shall be without prejudice’); Al-Torki v. Kaempen,

, 1385 8 | (9th Cir. 1996). Considering all of the circumstances, the action should be 9 | dismissed in its entirety without prejudice. 10 III. 1] CONCLUSION 12 IT IS THEREFORE ORDERED that Judgment will be entered dismissing 13 | this action without prejudice for failure to prosecute. 14 QP - 15 | DATED: October 21, 2020 <-r/P ae 16 STEPHEN V. WILSON 7 UNITED STATES DISTRICT JUDGE

18 | Presented by: E. Seetts 20 | KAREN E. SCOTT 41 | United States Magistrate Judge 22 23 24 25 26 27 28