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6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 EUTIMIO AISPURO, Case No. 2:19-cv-06938-JAK-SHK 12 Plaintiff, 13 ORDER DISMISSING CASE v. 14 DR. DEDILO, et al., 15 Defendants. 16 17 18 For the following reasons, the case is DISMISSED without prejudice. 19 I. BACKGROUND 20 On January 21, 2020, Plaintiff Eutimio Aispuro (“Plaintiff”), proceeding pro 21 se and in forma pauperis, constructively filed1 a Second Amended Complaint 22 (“SAC”) against Defendants Doctor Gustaveson and Doctor Danilo C. Bernal 23 (together, “Defendants”). Electronic Case Filing Number (“ECF No.”) 14, SAC. 24 On February 24, 2020, the Court issued a Report and Recommendation (“R&R”), 25 recommending that Plaintiff’s claims against Defendants in their official capacity 26 27 1 Under the “mailbox rule,” when a pro se prisoner gives prison authorities a pleading to mail to 1 be dismissed with prejudice and without leave to amend. ECF No. 16, R&R at 9; 2 ECF No. 20, Order Accepting R&R. 3 On April 8, 2020, the Court issued an order directing the SAC to be served 4 by the United States Marshal Services (“USMS”) on Defendants. ECF No. 21, 5 Order re Service of Process; ECF No. 22, Order Directing Service by USMS. On 6 June 9, 2020, USMS returned the process receipt, indicating that service was 7 unexecuted for Defendants because the “address provided is for Santa Barbara 8 Sheriffs” who could not accept service on behalf of Defendants. ECF Nos. 28-30. 9 In light of the inability to serve Defendants, on September 21, 2020, the 10 Court ordered Plaintiff to show cause (“OSC”) by October 19, 2020 why the case 11 should not be dismissed for failure to serve and/or failure to prosecute. ECF No. 12 31, OSC. The Court stated that Plaintiff could satisfy the OSC by: (1) completing 13 new USM-285 forms for Defendants, providing the required information in detail, 14 and filing a Notice of Submission with the Clerk of Court; (2) voluntarily 15 dismissing the cases without prejudice if Plaintiff no longer wished to pursue the 16 case; or (3) requesting leave to conduct limited discovery in order to discover more 17 particular and specific information regarding Defendants’ addresses. Id. at 2. The 18 Court warned Plaintiff that “failure to timely comply with one of the options 19 listed above may be deemed consent to the dismissal of this action.” Id. 20 (emphasis in original). 21 Plaintiff failed to timely satisfy the OSC, so on March 30, 2021, the Court 22 again ordered Plaintiff to show cause (“Second OSC”) by April 7, 2021, why the 23 case should not be dismissed for “failure to serve Defendants, for failure to 24 prosecute, and for failure to follow Court rules and orders.” ECF No. 33, Second 25 OSC at 2. The Court ordered that Plaintiff could satisfy the Second OSC by 26 performing one of the three options provided in the previous OSC and warned 27 again that “failure to timely comply with this order will result in a 1 failure to prosecute and/or failure to obey Court orders under Federal Rule of 2 Civil Procedure 41(b).” Id. (emphasis in original). To date, Plaintiff has not 3 satisfied the OSC or Second OSC. 4 II. LEGAL STANDARD 5 District courts have sua sponte authority to dismiss actions for failure to 6 prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. 7 Wabash R.R. Co.,

(1962); Hells Canyon Pres. Council v. 8 U.S. Forest Serv.,

(9th Cir. 2005) (stating courts may dismiss an 9 action under Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s 10 failure to prosecute or comply with the Federal Rules of Civil Procedure or the 11 court’s orders); Ferdik v. Bonzelet,

(9th Cir. 1992) (ordering 12 dismissal for failure to comply with court orders). 13 In deciding whether to dismiss for failure to prosecute or comply with court 14 orders, a district court must consider five factors: “(1) the public’s interest in 15 expeditious resolution of litigation; (2) the court’s need to manage its docket; 16 (3) the risk of prejudice to the defendants; (4) the public policy favoring 17 disposition of cases on their merits; and (5) the availability of less drastic 18 sanctions.” Henderson v. Duncan,

(9th Cir. 1986). 19 “Dismissal is appropriate ‘where at least four factors support dismissal, or where at 20 least three factors ‘strongly’ support dismissal.’” Neal v. Reslan, No. CV 19- 21 09291 PA (ASx),

, at *1 (C.D. Cal. Jan. 16, 2020) (quoting 22 Hernandez v. City of El Monte,

(9th Cir. 1998) (internal 23 citations omitted)). In a case involving sua sponte dismissal, however, the fifth 24 Henderson factor regarding the availability of less drastic sanctions warrants 25 special focus. Hernandez,

. 26 III. DISCUSSION 27 Here, the first two factors—public interest in expeditious resolution of 1 Despite being initially warned over seven months ago that this case may be 2 dismissed for failure to respond to the OSC and then warned a second time five 3 weeks ago that the case will be dismissed for failure to respond to the Court’s 4 Second OSC, Plaintiff has failed to respond to either OSC. This failure to 5 prosecute and follow Court orders hinders the Court’s ability to move this case 6 toward disposition and suggests that Plaintiff does not intend to litigate this action 7 diligently. 8 The third factor—prejudice to Defendant—also weighs in favor of dismissal. 9 A rebuttable presumption of prejudice to a defendant arises when a plaintiff 10 unreasonably delays prosecuting an action. See In re Eisen,

, 1452-53 11 (9th Cir. 1994) (citations omitted). Nothing suggests such a presumption is 12 unwarranted in this case, considering that Plaintiff has failed to comply with the 13 Court’s OSC and Second OSC and he has not offered any excuse for his failure to 14 comply with and respond in a timely manner. Thus, this prejudice element favors 15 dismissal. 16 The fourth factor—public policy in favor of deciding cases on the merits— 17 ordinarily weighs against dismissal. However, it is Plaintiff’s responsibility to 18 move litigation towards disposition at a reasonable pace and to avoid dilatory and 19 evasive tactics. See Morris v. Morgan Stanley,

(9th Cir. 1991). 20 Plaintiff has not met this responsibility despite having been: (1) instructed on his 21 responsibilities; (2) granted sufficient time in which to discharge them; and 22 (3) repeatedly warned of the consequences of failure to do so. Under these 23 circumstances, though this policy favors Plaintiff, it does not outweigh Plaintiff’s 24 repeated failure to obey Court orders or to file responsive documents within the 25 time granted. 26 The fifth factor—availability of less drastic sanctions—also weighs in favor 27 of dismissal. The Court cannot move the case toward disposition without 1 | the Court’s attempt to obtain a response, Plaintiff has shown he is either unwilling 2 | or unable to comply with Court orders by failing to file responsive documents and 3 | failing to otherwise cooperate in prosecuting this action. The Court is not aware of 4 | any lesser sanction that is available in this case. See Henderson,

5 | (“The district court need not exhaust every sanction short of dismissal before 6 | finally dismissing a case but must explore possible and meaningful alternatives.’’) 7 | (citation omitted); Roman v. Smith, No. 2:18-07909 PA (ADS),

| 8013120, at *1 (C.D. Cal. Nov. 18, 2019). 9 Accordingly, the Court finds that dismissal of this action, without prejudice, 10 | is appropriate here. 11 IV. CONCLUSION 12 For the reasons discussed previously, IT IS HEREBY ORDERED that the 13 | case is DISMISSED without prejudice. 14 13 Om VE Dated: May 10, 2021 16 JOHN A KRONSTADT 7 United States District Judge 18 19 | Presented by: 20 21 Wes 22 | HONORABLE SHASHI H. KEWALRAMANI | 73 United States Magistrate Judge 24 25 26 27 28