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4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8

9 10 ROBERT BLALOCK, Case No. 5:20-cv-2298-GW (MAR) 11 Petitioner, MEMORANDUM AND ORDER DISMISSING CASE 12 v. 13 P. KUNTZ, ET AL., 14 Respondent. 15 16 17 I. 18 INTRODUCTION 19 On October 22, 2020, Robert Blalock (“Plaintiff”) constructively filed1 a pro se 20 Civil Rights Complaint (“Complaint”) pursuant to

(“section 1983”). 21 ECF Docket No. (“Dkt.”) 1. On January 27, 2021, the Court dismissed the 22 Complaint with leave to amend (“ODLA”), granting Plaintiff thirty (30) days to file a 23 First Amended Complaint (“FAC”). Dkt. 11 at 8. To date, Plaintiff has not filed a 24 FAC. For the reasons below, the Court DISMISSES this action, without prejudice. 25 /// 26 /// 27 1 Under the “mailbox rule”, when a pro se prisoner gives prison authorities a pleading to mail to the 1 /// 2 /// 3 II. 4 BACKGROUND 5 On October 22, 2020, Robert Blalock , proceeding pro se and in forma 6 pauperis (“IFP”), constructively filed a Civil Rights Complaint pursuant to section 7 1983. ECF Docket No. (“Dkt.”) 1 at 12. On January 27, 2021, the Court issued an 8 Order Dismissing the Complaint with Leave to Amend (“ODLA”), granting Plaintiff 9 thirty (30) days to file a First Amended Complaint (“FAC”). Dkt. 11 at 8. After 10 receiving notice of Plaintiff’s change of address, the Court extended the deadline to 11 April 2, 2021. Dkts. 13, 15. 12 On April 7, 2021, Plaintiff filed what appeared to be an “Objection to the 13 Magistrate Judge[’]s Pretrial Order.” Dkt. 17. In response, the Court noted that the 14 authority that Plaintiff cited was inapplicable because the District Judge, not the 15 Magistrate Judge, had issued the Order Plaintiff objected to. Dkt. 18. The Court then 16 ordered Plaintiff to respond to the Order, clarifying whether Plaintiff wanted an 17 extension of time to file an FAC.

Plaintiff responded to the Order on May 24, 18 2021, by moving for an extension of ninety (90) days. Dkt. 19. On May 27, 2021, the 19 Court granted his motion but only for 30 days and extended the deadline to file an 20 FAC to June 28, 2021. Dkt. 20. 21 On July 27, 2021, this Court issued an Order to Show Cause (“OSC”) ordering 22 Plaintiff to show by August 10, 2021 why this action should not be dismissed for 23 failure to prosecute. Dkt. 21. Plaintiff was warned that “[f]ailure to respond to the 24 Court’s Order may result in the dismissal of the action.”

(emphasis added). 25 On September 3, 2021, this Court issued a second OSC ordering Plaintiff to 26 respond to the Court’s previous Orders. Dkt. 22. Plaintiff was warned that he “must 27 comply…by September 15, 2021, or this action will be dismissed for failure to 1 prosecute.” Dkt. 22 (emphasis in original). Plaintiff has not corresponded with the 2 Court at all since May 24, 2021. 3 III. 4 DISCUSSION 5 A. APPLICABLE LAW 6 District courts have sua sponte authority to dismiss actions for failure to 7 prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. Wabash 8 R.R. Co.,

, 629–30 (1962); Hells Canyon Pres. Council v. U.S. Forest 9 Serv.,

(9th Cir. 2005) (stating courts may dismiss an action under 10 Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute 11 or comply with the Federal Rules of Civil Procedure or the court’s orders); Ferdik v. 12 Bonzelet,

(9th Cir. 1992) (ordering dismissal for failure to 13 comply with court orders). 14 In deciding whether to dismiss for failure to prosecute or comply with court 15 orders, a district court must consider five (5) factors: “(1) the public’s interest in 16 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 17 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases 18 on their merits; and (5) the availability of less drastic sanctions.” Omstead v. Dell, 19 Inc.,

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

(9th Cir. 1986)). 21 “[The Ninth Circuit] ‘may affirm dismissal where at least four factors support 22 dismissal . . . or where at least three factors “strongly” support dismissal.’” Yourish v. 23 California Amplifier,

(9th Cir. 1999) (quoting Hernandez v. City of 24 El Monte,

(9th Cir. 1998)). In a case involving sua sponte 25 dismissal, however, the fifth Henderson factor regarding the availability of less drastic 26 sanctions warrants special focus. Hernandez,

. 27 /// 1 B. ANALYSIS 2 1. The public’s interest in expeditious resolution of litigation 3 In the instant action, the public’s interest in expeditious resolution of litigation 4 weighs in favor of dismissal. See Pagtalunan v. Galaza,

(9th Cir. 5 2002) (“The public’s interest in expeditious resolution of litigation always favors 6 dismissal.” (quoting Yourish, above) (internal quotation omitted)). Plaintiff has not 7 filed a First Amended Complaint in compliance with the Court’s January 27, 2021 8 Order Dismissing the Complaint with Leave to Amend (“ODLA”) or otherwise 9 responded to the Court’s July 27, 2021 OSC. In fact, Plaintiff has not corresponded 10 with the Court at all since he filed his Motion for an Extension of Time on May 24, 11 2021. Dkt. 19. Given that Plaintiff has failed to interact with the Court for over four 12 (4) months, this factor weighs in favor of dismissal. See Dkt. 19; see also Pagtalunan, 13

(finding that the plaintiff’s failure to pursue the case for almost four 14 (4) months weighed in favor of dismissal). 15 2. The Court’s need to manage its docket 16 The second factor—the Court’s need to manage its docket—likewise weighs in 17 favor of Dismissal. Courts have “the power to manage their dockets without being 18 subject to the endless vexatious noncompliance of litigants.” See Ferdik,

1261. As such, the second factor looks to whether a particular case has “consumed . . 20 . time that could have been devoted to other cases on the [Court’s] docket.” See 21 Pagtalunan,

; Edwards v. Marin Park, Inc.,

(9th 22 Cir. 2004) (“[R]esources continue to be consumed by a case sitting idly on the court's 23 docket.”). 24 On January 27, 2021, the Court issued an Order Dismissing the Complaint with 25 Leave to Amend ordering Plaintiff to file a FAC within thirty (30) days of the service 26 date of the Order. Dkt. 11. The ODLA explicitly cautioned Plaintiff “failure to 27 timely file a First Amended Complaint in conformity with this Order may result in the 1 On July 27, 2021, after Plaintiff failed to respond to the ODLA, the Court 2 issued an OSC why the Complaint should not be dismissed for lack of prosecution. 3 Dkt. 21. The Court issued a second OSC on September 3, 2021, warning that failure 4 to respond will result in dismissal. Dkt. 22. 5 Plaintiff has failed to comply, or otherwise respond, to any of the Court’s 6 Orders, all of which warned Plaintiff that his failure to comply could or would result 7 in the recommended dismissal of the Complaint. See Dkts. 11 at 9; 21; 22. Plaintiff’s 8 failure to prosecute and follow Court Orders hinders the Court’s ability to move this 9 case toward disposition and suggests Plaintiff does not intend to or cannot litigate this 10 action diligently. Consequently, the Court’s need to manage its docket favors 11 dismissal here. 12 3. The risk of prejudice to Defendant 13 The third factor—prejudice to Defendant(s)—also weighs in favor of dismissal. 14 A rebuttable presumption of prejudice to defendant arises when plaintiffs 15 unreasonably delay prosecution of an action. See In re Eisen,

, 1452–53 16 (9th Cir. 1994) (“[T]he failure to prosecute diligently is sufficient by itself to justify 17 dismissal . . . [t]he law presumes injury from unreasonable delay.”). 18 Nothing suggests such a presumption is unwarranted in this case. Plaintiff has 19 not provided any reason for his failure to comply with either the Court’s ODLA or 20 OSC and for his failure to communicate with the Court since he filed his Motion on 21 May 24, 2021. Dkt. 19. Given the length of the delay, the Court finds Plaintiff’s delay 22 in prosecuting this case to be unreasonable. Thus, prejudice is presumed and weighs 23 in favor of dismissal. See, e.g., In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 24 460 F.3d at 1227 (“The law . . . presumes prejudice from unreasonable delay.”). 25 4. Public policy favoring disposition on the merits 26 The fourth factor—public policy in favor of deciding cases on the merits— 27 ordinarily weighs against dismissal. See In re Phenylpropanolamine (PPA) Prod. Liab. 1 dismissal. It is, however, Plaintiff’s responsibility to move towards disposition at a 2 reasonable pace and avoid dilatory and evasive tactics. See Morris v. Morgan Stanley, 3

(9th Cir. 1991). Plaintiff has not discharged this responsibility 4 despite having been: (1) instructed on his responsibilities; (2) granted sufficient time 5 in which to discharge them; and (3) warned of the consequences of failure to do so. 6 See Dkts. 11 at 9; 21; 22. Under these circumstances, and without any other 7 information from Plaintiff, the policy favoring resolution of disputes on the merits 8 does not outweigh Plaintiff’s failure to obey Court Orders or to file responsive 9 documents within the time granted. 10 5. Availability of less drastic alternatives 11 The fifth factor—availability of less drastic sanctions—also weighs in favor of 12 dismissal. A “district court need not exhaust every sanction short of dismissal before 13 finally dismissing a case, but must explore possible and meaningful alternatives.” 14 Henderson,

. Less drastic alternatives to dismissal include warning a 15 party that dismissal could result from failure to obey a court order. See Malone, 833 16 F.2d at 132 n.1. Further, “a district court’s warning to a party that his [or her] failure 17 to obey the court’s order will result in dismissal can satisfy the ‘consideration of 18 alternatives’ requirement.” Ferdik,

(citations omitted). 19 Here, the Court cannot move the case toward disposition without Plaintiff’s 20 compliance with Court Orders or participation in this litigation. Plaintiff has shown 21 he is either unwilling or unable to comply with Court Orders by filing responsive 22 documents or otherwise cooperating in prosecuting this action. Given this record, the 23 Court finds that any less drastic alternatives to dismissal would be inadequate to 24 remedy Plaintiff’s failures to obey Court Orders and to prosecute. 25 6. Summary 26 Finally, while dismissal should not be entered unless Plaintiff has been notified 27 dismissal is imminent, see W. Coast Theater Corp. v. City of Portland,

, 1 | 1523 (9th Cir. 1990), the Court has warned Plaintiff about the potential dismissal in 2 | the January 27, 2021 ODLA and in two (2) separate OSCs. See Dkts. 11 at 9; 21; 22. 3 As discussed above, four (4) of the Rule 41(b) factors weigh in favor of 4 | dismissal. Accordingly, this action is subject to dismissal. 5 IV. 6 ORDER 7 IT IS THEREFORE ORDERED THAT Petitioner’s case is DISMISSED 8 | without prejudice. 9 10 Dated: October 8, 2021

11 Mfg Ky 12 United States District Judge 13 14 | Presented by: 15 16 pe 17 18 Matted Stance Magisteare Judge 19 20 21 22 23 24 25 26 27 28