1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ULYSSES FRANKLIN MOORE, Case No. 5:18-cv-00907-JLS-MAA JR., 12 ORDER DISMISSING PETITION Petitioner, AND DISMISSING ACTION 13 WITHOUT PREJUDICE v. 14 GEORGE JAIME, Warden, 15 Respondent. 16 17 18 I. INTRODUCTION AND BACKGROUND 19 On April 30, 2018, the Court received and filed Petitioner Ulysses Franklin 20 Moore, Jr.’s (“Petitioner”) pro se Petition for Writ of Habeas Corpus by a Person in 21 State Custody pursuant to

(“Petition”). (Pet., ECF No. 1.) The 22 Court received and filed Petitioner’s operative Second Amended Petition (“SAP”) 23 on February 19, 2020. (SAP, ECF No. 47.) 24 On March 4, 2020, Respondent filed a Motion to Dismiss the SAP 25 (“Motion”). (Mot., ECF No. 48.) Plaintiff’s Opposition to the Motion was due 26 within thirty days after service of the Motion. (ECF No. 46. at 4.)1 27 1 Pinpoint citations of filings in this Report and Recommendation refer to the page 28 numbers appearing in the ECF-generated headers. 1 On June 4, 2020, the Court issued an Order sua sponte extending Petitioner’s 2 Opposition deadline to August 3, 2020 upon discovery that Petitioner had been 3 transferred from his institution of record (“June 4 Order”). (June 4, 2020 Or., ECF 4 No. 50.) The June 4 Order explicitly advised Petitioner that “[t]he Court may deem 5 Petitioner’s failure to respond timely to the Motion as consent to the granting of the 6 Motion and the dismissal of this federal lawsuit.” See C.D. Cal. L.R. 7-12.” (Id. at 7 2.) The Court further cautioned Petitioner that “failure to comply with this Order 8 will result in a recommendation that the Motion be granted pursuant to Local Rule 9 7-12, and/or that this action be dismissed for failure to comply with a court order 10 pursuant to Federal Rule of Civil Procedure 41(b).” (Id.) 11 On September 9, 2020, in the absence of a filed Opposition, the Court issued 12 an Order to Show Cause Regarding Petitioner’s Opposition to Respondent’s Motion 13 to Dismiss (“September 9 Order”). (Sept. 9, 2020 Or., ECF No. 9.) The Court 14 ordered Petitioner to show cause by November 9, 2020 why the Court should not 15 recommend that the case be dismissed for failure to file an Opposition to the Motion. 16 (Id. at 1–2.) The September 9 Order stated that “[i]f Petitioner file[d] an Opposition 17 on or before that date, the Order to Show Cause [would] be discharged, and no 18 additional action need be taken.” (Id.) The Court advised Petitioner as follows: 19 [F]ailure to file an Opposition to the Motion will be deemed as 20 consent to the granting of the Motion and will result in a 21 recommendation that this action be dismissed. See C.D. Cal. L.R. 7- 22 12. Petitioner also is advised that failure to comply with this order 23 will result in a recommendation that the lawsuit be dismissed for 24 failure to prosecute and/or failure to comply with Court orders. See 25 C.D. Cal. L.R. 41-1. 26 (Id. at 2.) 27 To date, Petitioner has filed neither an Opposition to the Motion to Dismiss 28 nor any response to the September 9 Order. Petitioner last communicated with the 1 Court on June 19, 2020, when the Court received Petitioner’s notice of change of 2 address. (See ECF No. 51.) 3 4 II. ANALYSIS 5 A. Legal Standard 6 Central District of California Local Rule 7-12 provides in pertinent part: 7 The Court may decline to consider any memorandum or other 8 document not filed within the deadline set by order or local rule. The 9 failure to file any required document, or the failure to file it within the 10 deadline, may be deemed consent to the granting or denial of the 11 motion . . . . 12 C.D. Cal. L.R. 7-12; see also Ghazali v. Moran,

, 53–54 (9th Cir. 1995) 13 (affirming dismissal on the basis of an unopposed motion pursuant to local rule). 14 In addition, district courts may dismiss cases sua sponte for failure to 15 prosecute or for failure to comply with a court order under Federal Rule of Civil 16 Procedure 41(b). Hells Canyon Pres. Council v. U.S. Forest Serv.,

, 17 689 (9th Cir. 2005); see also Link v. Wabash R.R. Co.,

, 629–30 (1962) 18 (holding that federal district courts have “inherent power” to dismiss cases sua 19 sponte for lack of prosecution). Unless the Court states otherwise, a dismissal under 20 Rule 41(b)—other than for lack of jurisdiction, improper venue, or failure to join a 21 party—operates as an adjudication on the merits. See Fed. R. Civ. P. 41(b). 22 Dismissal, however, “is a harsh penalty and is to be imposed only in extreme 23 circumstances.” Allen v. Bayer Corp. (In re: Phenylpropanolamine (PPA) Prods. 24 Liab. Litig.),

(9th Cir. 2006) (quoting Malone v. U.S. Postal 25 Serv.,

(9th Cir. 1987)). “A Rule 41(b) dismissal must be 26 supported by a showing of unreasonable delay.” Omstead v. Dell,

, 27 1084 (9th Cir. 2010) (quoting Henderson v. Duncan,

(9th Cir. 28 1986)) (internal quotation marks omitted). 1 Before dismissing an action for failure to follow a local rule, failure to 2 prosecute, or failure to comply with a court order, a district court must weigh five 3 factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the 4 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the 5 public policy favoring disposition of cases of their merits; and (5) the availability of 6 less drastic sanctions.” Ghazali, 46 F.3d at 53–54 (quoting Henderson v. Duncan, 7

(9th Cir. 1986)) (failure to follow a local rule); see also 8 Pagtalunan v. Galaza,

(9th Cir. 2002) (failure to prosecute or 9 failure to comply with a court order). The Ninth Circuit will “affirm a dismissal 10 where at least four factors support dismissal, or where at least three factors strongly 11 support dismissal.” Dreith v. Nu Image, Inc.,

(9th Cir. 2011) 12 (quoting Yourish v. Cal. Amplifier,

, 990 (9th Cir. 1999)). 13 14 B. The Factors Support Dismissal. 15 1. The Public’s Interest in Expeditious Resolution and the Court’s 16 Need to Manage its Docket 17 The first and second factors (the public’s interest in expeditious resolution of 18 litigation and the Court’s need to manage its docket)2 weigh in favor of dismissal. 19 “Orderly and expeditious resolution of disputes is of great importance to the rule of 20 law.” Prods. Liab. Litig.,

. Thus, “[t]he public’s interest in 21 expeditious resolution of litigation always favors dismissal.” Pagtalunan,

(quoting Yourish, 191 F.3d at 990). In addition, district courts “have an 23 inherent power to control their dockets,” Prods. Liab. Litig.,

24 (quoting Thompson v. Hous. Auth. of City of Los Angeles,

(9th 25

26 2 Courts usually review the first factor in conjunction with the second factor. See 27 Prods. Liab. Litig.,

; Moneymaker v. CoBen (In re Eisen),

(9th Cir. 1994) (The first two factors are usually reviewed together “to 28 determine if there is an unreasonable delay.”). 1 Cir. 1986)), and “are best suited to determine when delay in a particular case 2 interferes with docket management and the public interest.” Yourish, 191 F.3d at 3 990 (quoting Ash v. Cvetkov,

(9th Cir. 1984)). 4 To date, Petitioner has not filed an Opposition to the Motion or a Response to 5 the Court’s September 9 Order. Indeed, Petitioner has not communicated with the 6 Court since June 19, 2020. The Court deems Plaintiff’s failure to file a timely 7 Opposition consent to the granting of the Motion. See C.D. Cal. L.R. 7-12. The 8 Court also concludes that Petitioner’s failure to file an Opposition to the Motion, 9 failure to follow local rules, failure to comply with Court orders, and failure to 10 prosecute the lawsuit constitute unreasonable delay. See Thomas v. Maricopa Cty. 11 Jail, 265 Fed. App’x 606, 607 (9th Cir. 2008) (Mem.) (holding that district court did 12 not abuse its discretion by dismissing pro se prisoner lawsuit for failure to respond 13 to a court order for almost three months). Plaintiff’s noncompliance and inaction 14 also interfere with the public’s interest in the expeditious resolution of this litigation 15 and hinder the Court’s ability to manage its docket. See Prods. Liab. Litig., 460 16 F.3d at 1227 (“[The Ninth Circuit] defer[s] to the district court’s judgment about 17 when a delay becomes unreasonable ‘because it is in the best position to determine 18 what period of delay can be endured before its docket becomes unmanageable.’” 19 (quoting Moneymaker v. CoBen (In re Eisen),

(9th Cir. 1994))). 20 For these reasons, the first and second factors favor dismissal. 21 22 2. Risk of Prejudice to Respondent 23 The third factor also supports dismissal without prejudice. The risk of 24 prejudice to a respondent is related to a petitioner’s reason for failure to prosecute an 25 action. See Pagtalunan,

. As Petitioner has not communicated with 26 the Court since June 19, 2020, he has offered no reason for failing to file an 27 Opposition to the Motion to Dismiss. The absence of any reason indicates sufficient 28 prejudice to Respondent. See Yourish, 191 F.3d at 991–92 (holding that a paltry 1 excuse for default indicates sufficient prejudice to the defendants); see also Laurino 2 v. Syringa Gen. Hosp.,

, 753 (9th Cir. 2002) (holding that “a 3 presumption of prejudice arises from a plaintiff’s unexplained failure to prosecute”). 4 5 3. Availability of Less Drastic Alternatives 6 The fourth factor also supports dismissal without prejudice. “Warning that 7 failure to obey a court order will result in dismissal can itself meet the 8 ‘consideration of alternatives’ requirement.” Prods. Liab. Litig.,

9 (citing, inter alia, Ferdik v. Bonzelet,

, 1262 (9th Cir. 1991) 10 (“Moreover, our decisions also suggest that a district court’s warning to a party 11 that his failure to obey the court’s order will result in dismissal can satisfy the 12 ‘consideration of alternatives’ requirement.”)). In its September 9 Order, the 13 Court warned Petitioner that the Petition would be dismissed if he did not respond 14 to the Order or file an Opposition by November 9, 2020. (Sept. 9, 2020 Or. at 1– 15 2.) Despite being afforded 30 days to comply, Petitioner failed to respond to the 16 Order. 17 18 4. Public Policy Favoring Disposition of Cases on Their Merits 19 The fifth factor weighs against dismissal. “We have often said that the 20 public policy favoring disposition of cases on their merits strongly counsels 21 against dismissal.” Prods. Liab. Litig.,

(citing Hernandez, 138 22 F.3d at 399). On the other hand, “this factor ‘lends little support’ to a party whose 23 responsibility it is to move a case toward disposition on the merits but whose 24 conduct impedes progress in that direction.” Id. (citations omitted). Thus, this 25 factor alone does not preclude dismissal. 26 /// 27 /// 28 /// 1 C. Dismissal of this Action is Appropriate. 2 As discussed above, Plaintiff’s failure to file an Opposition to the Motion, 3 failure to comply with local rules, failure to comply with Court orders, and failure to 4 prosecute this action constitute unreasonable delay. In addition, four of the 5 dismissal factors weigh in favor of dismissal, whereas only one factor weighs 6 against dismissal. “While the public policy favoring disposition of cases on their 7 merits weighs against [dismissal], that single factor is not enough to preclude 8 imposition of this sanction when the other four factors weigh in its favor.” Rio 9 Props., Inc. v. Rio Int’l Interlink,

(9th Cir. 2002). 10 The Court concludes that dismissal of this action for failure to file an 11 Opposition to the Motion, failure to comply with local rules, failure to comply with 12 Court orders, and failure to prosecute is warranted. However, consistent with Rule 13 41(b) and this Court’s exercise of its discretion, the dismissal should be without 14 prejudice. 15 16 III. CONCLUSION 17 Accordingly, IT IS HEREBY ORDERED that (1) the Petition is DISMISSED 18 for failure to comply with a local rule, failure to comply with a court order, and 19 failure to prosecute, (2) Respondent’s Motion to Dismiss is GRANTED, and (3) the 20 Clerk is directed to enter judgment dismissing this action without prejudice. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 || IV. CERTIFICATE OF APPEALABILITY 2 Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the 3 || United States District Courts, the Court “must issue or deny a certificate of 4 || appealability when it enters a final order adverse to the applicant.” The Court has 5 || considered whether a certificate of appealability is warranted. See 28 U.S.C. 6 |) § 2253(c)(2); Slack v. McDaniel,

(2000). The Court 7 || concludes that a certificate of appealability is not warranted; thus, a certificate of 8 || appealability is DENIED. 9 10 || DATED: January 4, 2021 aul 2 — 11 vel Cth 12 JOSEPHINEL.STATON □□□ 13 UNITED STATES DISTRICT JUDGE 14 15 || Presented by: 16 17 18 cml AUDERO 19 | UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28