1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DARNELL BLACK, SR., Case No. CV 21-06401-RGK (RAO)

12 Plaintiff,

13 v. ORDER DISMISSING COMPLAINT 14 RALPH DIAZ, et al., 15 Defendants. 16

17 I. INTRODUCTION 18 On October 5, 2020, Plaintiff Darnell Black, Sr. (“Plaintiff”) filed a Complaint 19 pursuant to

in the Eastern District of California. Dkt. No. 1. 20 Plaintiff’s request to proceed in forma pauperis was granted. Dkt. No. 8. On August 21 9, 2021, the action was transferred to this district. Dkt. No. 21. After screening, the 22 Court dismissed the Complaint with leave to amend (“August 12, 2021 order”). Dkt. 23 No. 24. The Court’s August 12, 2021, gave Plaintiff 30 days to file an amended 24 complaint and warned Plaintiff that failure to file an amended complaint would result 25 in dismissal of this action for failure to prosecute.

On September 29, 2021, when 26 Plaintiff did not file an amended complaint by the court-ordered deadline, the Court 27 issued an order to show cause (“OSC”) within 30 days why this action should not be 28 1 dismissed. Dkt. No. 25. The OSC provided that Plaintiff could discharge the order 2 by filing an amended complaint on or before the OSC’s deadline.

Plaintiff did 3 not respond to the OSC. 4 II. DISCUSSION 5 Federal Rule of Civil Procedure 41 (“Rule 41”) governs the dismissal of 6 federal actions. Rule 41(b) grants district courts authority to dismiss actions for 7 failure to comply with court orders or for failure to prosecute. Ferdik v. Bonzelet, 8

(9th Cir. 1992); Link v. Wabash R.R. Co.,

, 629- 9 31,

,

(1962). District courts may exercise their inherent 10 power to control their dockets by imposing sanctions, including, where appropriate, 11 the dismissal of a case. Ferdik,

. 12 A court must weigh five factors when determining whether to dismiss an action 13 for failure to prosecute or failure to comply with court orders: 14 (1) the public’s interest in expeditious resolution of litigation; 15 (2) the court’s need to manage its docket; 16 (3) the risk of prejudice to defendants; 17 (4) the availability of less drastic alternatives; and 18 (5) the public policy favoring disposition of cases on their merits. 19 Pagtalunan v. Galaza,

(9th Cir. 2002). Dismissal is appropriate 20 where at least four factors support dismissal, or where three factors “strongly 21 support” dismissal. Yourish v. California Amplifier,

, 990 (9th Cir. 22 1990). 23 Here, the first and second factors (the public’s interest in expeditious 24 resolution and the Court’s need to manage its docket) strongly favor dismissal. 25 “[T]he public’s interest in expeditious resolution of litigation always favors 26 dismissal.” Id. Here, Plaintiff has failed to file the amended complaint by the court- 27 ordered deadline. Moreover, Plaintiff did not respond to the Court’s OSC why this 28 action should not be dismissed for failure to prosecute. Plaintiff’s “noncompliance 1 has caused [this] action to come to a complete halt, thereby allowing [him] to control 2 the pace of the docket rather than the Court.” Yourish, 191 F.3d at 990. Plaintiff’s 3 inaction interferes with the public’s interest in expeditious resolution of the litigation 4 and the Court’s need to manage its docket. Accordingly, these two factors weigh 5 strongly in favor of dismissal. 6 The third factor (the risk of prejudice to the defendant) requires a defendant to 7 establish “that plaintiff’s actions impaired defendant’s ability to proceed to trial or 8 threatened to interfere with the rightful decision of the case.” Pagtalunan,

. “Limited delays and the prejudice to a defendant from the pendency of a 10 lawsuit are realities of the system that have to be accepted, provided the prejudice is 11 not compounded by ‘unreasonable’ delays.” Ash v. Cvetkov,

(9th 12 Cir. 1984). However, “the risk of prejudice to the defendant is related to the 13 plaintiff’s reason for defaulting in failing to timely” act. Yourish, 191 F.3d at 991. 14 The better the reason, the less likely it is that the third factor will favor dismissal. 15 See id. (finding that the plaintiff’s “paltry excuse for his default on the judge’s order 16 indicate[d] that there was sufficient prejudice to Defendants from the delay that [the 17 third] factor also strongly favor[ed] dismissal”). The Ninth Circuit has stated that 18 “the failure to prosecute diligently is sufficient by itself to justify a dismissal, even 19 in the absence of a showing of actual prejudice to the defendant from the failure.” 20 Anderson v. Air W., Inc.,

(9th Cir. 1976); see also In re Eisen, 31

, 1452-53 (9th Cir. 1994) (quoting Anderson). Here, the failure to file an 22 amended complaint and to respond to the Court’s OSC indicates Plaintiff’s loss of 23 interest in the matter. The Court finds that the third factor weighs in favor of 24 dismissal. 25 The fourth factor (the availability of less drastic alternatives) also weighs in 26 favor of dismissal. The Court has provided Plaintiff sufficient time to file an 27 amended complaint. When Plaintiff did not file an amended complaint by the 28 deadline imposed, the Court issued an OSC, allowing Plaintiff another opportunity 1 || to file. The Court cautioned Plaintiff that a failure to respond to the OSC would result 2 || in a recommendation that the action be dismissed for failure to prosecute, see Dkt. 3 || No. 25, yet Plaintiff has failed to file an amended complaint or otherwise respond to 4 || the Court’s orders. Plaintiff's failure to participate in his own lawsuit supports that 5 || no lesser sanction will be effective. Also, the Court is dismissing this action without 6 || prejudice, a far less drastic alternative than dismissal with prejudice. Accordingly, 7 || this factor favors dismissal. See Watts v. Kernan, 336 Fed. App’x 747 (9th Cir. 2009) 8 || (affirming dismissal of action for failure to prosecute where prisoner plaintiff failed 9 || to respond to a motion to dismiss after a district court granted several extensions of 10 || time and warned that failure to file an opposition could result in dismissal). 11 Regarding the fifth factor, public policy generally favors the disposition of 12 || cases on their merits. Pagtalunan,

. However, it is the responsibility 13 || of the moving party to move the case toward a timely disposition on the merits, and 14 || to refrain from dilatory and evasive tactics. Morris v. Morgan Stanley & Co., 942 15 || F.2d 648, 652 (9th Cir. 1991). Thus, it does not appear that retention of this case 16 || would increase the likelihood of the matter being resolved on its merits. This factor 17 || does not weigh in favor of or against dismissal. 18 Four factors favor dismissal and one factor is neutral. Accordingly, dismissal 19 || of this action without prejudice is appropriate. 20 || HI. CONCLUSION 21 For the reasons set forth above, IT IS ORDERED that this case is DISMISSED 22 || without prejudice. 23 24 || DATED: November 19, 2021 d “oO KQarerep a 25 R.GARYKLAUSNER %6 UNITED STATES DISTRICT JUDGE 27 28