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2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BRYAN PEREZ, Case No. 2:20-cv-06236-JLS (MAA)

12 Plaintiff, ORDER OF DISMISSAL 13 v.

14 KILOLO KIJAKAZI,1

15 Defendant. 16

17 I. SUMMARY OF PROCEEDINGS 18 On July 14, 2020, Plaintiff Bryan Perez (“Plaintiff”) initiated this action for 19 review of a final decision of the Commissioner of Social Security denying an 20 application for Supplemental Security Income (“SSI”). (Compl., ECF No. 1.) On 21 July 14, 2020, Plaintiff also filed a Request to Proceed In Forma Pauperis (ECF No. 22 3), which the Court granted on July 16, 2020 (ECF No. 5). 23 On July 16, 2020, the Court issued an Initial Case Management Order 24 Regarding Proceedings in Social Security Appeals with a Pro Se Litigant (“Order- 25 1”). (Order-1, ECF No. 6.) Order-1 explained that the action was stayed, but that 26 Plaintiff could serve the summons and Complaint. (Id. § I.) Order-1 also explained 27

28 1 The Defendant is substituted pursuant to Federal Rule of Civil Procedure 25(d). Case 2:20-cv-06236-JLS-MAA Document 12 Filed 03/14/22 Page 2 of 7 Page ID #:38

1 that the stay would remain in place until the Commissioner of Social Security either 2 (a) filed a proof of service showing service of the Certified Administrative Record 3 (“CAR”) on Plaintiff; or (b) filed the CAR directly with the District Court. (Id.) 4 Thereafter, case deadlines would proceed pursuant to Order-1. (Id.) A summons 5 issued on August 4, 2020. (ECF No. 7.) 6 On April 15, 2021, the stay was lifted pursuant to Order of the Chief Judge 7 No. 21-37. Once the stay was lifted, pursuant to Order-1, Plaintiff had thirty days 8 to file a proof of service of the summons and Complaint—that is, until May 17, 9 2021. (See Order-1 § IV.) 10 On November 1, 2021, in the absence of a filed proof of service or response 11 to Order-1, the Court ordered Plaintiff to show cause by no later than December 1, 12 2021, why this action should not be dismissed without prejudice for his failure to 13 prosecute and/or failure to comply with a court order pursuant to Federal Rule of 14 Civil Procedure 41(b) (“Order-2”). (Order-2, ECF No. 9.) The Court “expressly 15 cautioned that failure to comply with this Order may result in a dismissal of 16 the Complaint without prejudice for failure to prosecute and/or failure to 17 comply with a court order pursuant to Federal Rule of Civil Procedure 41(b).” 18 (Id. at 2.) 19 On January 13, 2022, in the absence of a filed proof of service or response to 20 Order-1 or Order-2, the Court ordered Plaintiff to show cause by February 14, 21 2022, why the Court should not recommend that the lawsuit be dismissed for failure 22 to prosecute and comply with a Court order (“Order-3”). (Order-3, ECF No. 10.) 23 The Court stated that if Plaintiff filed a proof of service on or before that date, 24 Order-3 would be discharged, and no additional action need be taken. (Id. at 2.) 25 The Court again “cautioned that failure to respond to this Order may result in 26 dismissal of the Complaint without prejudice for failure to prosecute and/or 27 failure to comply with a court order pursuant to Federal Rule of Civil 28 Procedure 41(b). See C.D. Cal. L.R. 41-1.” (Id. at 2.)

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1 To date, Plaintiff has failed to respond to Order-1, Order-2, or Order-3. 2 Indeed, Plaintiff has not communicated with the Court since initiating this action on 3 July 14, 2020. 4 5 II. LEGAL STANDARD 6 District courts may dismiss cases sua sponte for failure to prosecute or for 7 failure to comply with a court order under Federal Rule of Civil Procedure 41(b). 8 Hells Canyon Pres. Council v. U.S. Forest Serv.,

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

, 629–30 (1962) (holding that the 10 court has “inherent power” to dismiss cases sua sponte for lack of prosecution). 11 Unless the Court states otherwise, a dismissal under Rule 41(b) operates as an 12 adjudication on the merits. Fed. R. Civ. P. 41(b). “Dismissal is a harsh penalty and 13 is to be imposed only in extreme circumstances.” In re: Phenylpropanolamine 14 (PPA) Prods. Liab. Litig.,

(9th Cir. 2006) (quoting Malone v. 15 USPS,

(9th Cir. 1987)). 16 “A Rule 41(b) dismissal ‘must be supported by a showing of unreasonable 17 delay.’” Omstead v. Dell,

(9th Cir. 2010) (quoting Henderson 18 v. Duncan,

(9th Cir. 1986)). In addition, the court must weigh 19 the following factors in determining whether a Rule 41(b) dismissal is warranted: 20 “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 21 to manage its docket; (3) the risk of prejudice to the defendants/respondents; (4) the 22 availability of less drastic alternatives; and (5) the public policy favoring disposition 23 of cases on their merits.” Pagtalunan v. Galaza,

(9th Cir. 2002). 24 The Ninth Circuit will “affirm a dismissal where at least four factors support 25 dismissal, or where at least three factors strongly support dismissal.” Dreith v. Nu 26 Image, Inc.,

(9th Cir. 2011) (quoting Yourish v. Cal. Amplifier, 27

, 990 (9th Cir. 1999)). Finally, “in order to warrant a sanction of 28 ///

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1 dismissal, the party’s violations of the court’s orders must be due to wilfulness or 2 bad faith.” Id. 3 4 III. ANALYSIS 5 A. The Public’s Interest in Expeditious Resolution and the Court’s 6 Need to Manage Its Docket 7 The first and second factors (the public’s interest in expeditious resolution of 8 litigation and the Court’s need to manage its docket)2 weigh in favor of dismissal. 9 “Orderly and expeditious resolution of disputes is of great importance to the rule of 10 law.” In re: Phenylpropanolamine,

. “The public’s interest in 11 expeditious resolution of litigation always favors dismissal.” Pagtalunan,

(quoting Yourish, 191 F.3d at 990). In addition, district courts “have an 13 inherent power to control their dockets,” In re: Phenylpropanolamine,

1227 (quoting Thompson v. Hous. Auth. of Los Angeles,

(9th Cir. 15 1986)), and “are best suited to determine when delay in a particular case interferes 16 with docket management and the public interest.” Yourish, 191 F.3d at 990 17 (quoting Ash v. Cvetkov,

(9th Cir. 1984)). 18 Plaintiff has failed to respond to Order-1, Order-2, and Order-3, and 19 otherwise has not participated in this action since July 14, 2020. The Court 20 concludes that Plaintiff’s inaction and lack of communication with the Court 21 constitute willful unreasonable delay. See, e.g., Thomas v. Maricopa Cnty. Jail, 22 265 F. App’x. 606, 607 (9th Cir. 2008) (holding that district court did not abuse its 23 discretion by dismissing pro se prisoner lawsuit for failure to respond to a court 24 order for almost three months). Plaintiff’s noncompliance also interferes with the 25 public’s interest in the expeditious resolution of this litigation and hinders the 26 Court’s ability to manage its docket. See In re: Phenylpropanolamine,

2 The first two factors are usually reviewed together “to determine if there is an 28 unreasonable delay.” In re Eisen,

(9th Cir. 1994).

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1 1227 (“[The Ninth Circuit] defer[s] to the district court’s judgment about when a 2 delay becomes unreasonable ‘because it is in the best position to determine what 3 period of delay can be endured before its docket becomes unmanageable.”) (quoting 4 In re Eisen,

)). The first and second factors favor dismissal. 5 6 B. Risk of Prejudice to Defendants 7 The third factor (risk of prejudice to the defendants) also weighs in favor of 8 dismissal. “A defendant suffers prejudice if the plaintiff’s actions impair the 9 defendant’s ability to go to trial or threaten to interfere with the rightful decision of 10 the case.” In re: Phenylpropanolamine,

(quoting Adriana Int’l 11 Corp. v. Thoeren,

(9th Cir. 1990)). “The law also presumes 12 prejudice from unreasonable delay.”

The risk of prejudice to a defendant is 13 related to a plaintiff’s reason for failure to prosecute an action. Pagtalunan, 291 14 F.3d at 642. “Whether prejudice is sufficient to support an order of dismissal is in 15 part judged with reference to the strength of the plaintiff’s excuse for the default.” 16 Malone,

. 17 Plaintiff has failed to respond to Order-1, Order-2, and Order-3, without 18 explanation. As “a presumption of prejudice arises from the plaintiff’s unexplained 19 failure to prosecute,” the third factor favors dismissal. See Hernandez v. City of El 20 Monte,

(9th Cir. 1998). 21 22 C. Availability of Less Drastic Alternatives 23 The fourth factor (the availability of less drastic alternatives) also supports 24 dismissal. “The district court need not exhaust every sanction short of dismissal 25 before finally dismissing a case, but must explore possible and meaningful 26 alternatives.” Henderson,

. 27 The Court considered and implemented less drastic alternatives prior to 28 dismissal. The Court warned Plaintiff that failure to comply with Order-2 and

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1 Order-3 could result in a recommendation that the Complaint be dismissed without 2 prejudice for failure to prosecute and/or failure to comply with a court order 3 pursuant to Federal Rule of Civil Procedure 41(b). (See Order-2; Order-3.) See In 4 re: Phenylpropanolamine,

(“Warning that failure to obey a court 5 order will result in dismissal can itself meet the ‘consideration of alternatives’ 6 requirement.”). The Court also extended Plaintiff’s deadline twice: from May 17, 7 2021 to December 1, 2021, and again to February 14, 2022. (See Order-1, Order-2, 8 Order-3.) See Ferdik v. Bonzelet,

(9th Cir. 1992) (holding that 9 the district court’s allowance of an additional thirty days for plaintiff to file an 10 amended complaint was an attempt at a less drastic sanction). The fourth factor 11 weighs in favor of dismissal. 12 13 D. Public Policy Favoring Disposition on the Merits 14 As to the fifth factor, “[p]ublic policy favors disposition of cases on the 15 merits.” Pagtalunan,

. However, “a case that is stalled or 16 unreasonably delayed by a party’s failure to comply with deadlines . . . cannot move 17 toward resolution on the merits.” In re: Phenylpropanolamine,

. 18 Thus, “this factor lends little support to a party whose responsibility it is to move a 19 case towards disposition on the merits but whose conduct impedes progress in that 20 direction.”

(internal quotation marks omitted). The case has been stalled by 21 Plaintiff’s failure to respond to the Court’s orders (Order-1, Order-2, Order-3). 22 Still, the public policy favoring the resolution of disputes on the merits is strong 23 and, under the circumstances, outweighs Plaintiff’s noncompliance and inaction. 24 25 E. Dismissal Without Prejudice 26 In summary, Plaintiff’s failure to respond to Order-1, Order-2, and Order-3, 27 and failure to otherwise participate in this lawsuit since July 14, 2020, constitute 28 willful unreasonable delay. Four of the Rule 41(b) dismissal factors weigh in favor

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| || of dismissal, whereas only one factor weighs against dismissal. “While the public 2 || policy favoring disposition of cases on their merits weighs against [dismissal], that 3 || single factor is not enough to preclude imposition of this sanction when the other 4 || four factors weigh in its favor.” Rio Props., Inc. v. Rio Int'l Interlink,

|| 1007, 1022 (9th Cir. 2002). The Court concludes that dismissal of this action for 6 || failure to prosecute and to comply with Court orders is warranted, but, consistent 7 || with Rule 41(b) and this Court’s exercise of its discretion, the dismissal is without 8 || prejudice. 10 | IV. CONCLUSION 1] IT THEREFOREIS ORDERED that this lawsuit DISMISSED without 12 || prejudice. No further filings shall be accepted under this case number. 13 14 Uy —_— 15 || DATED: March 14, 2022 ough oh 16 JOSEPHINE L. STATON 7 UNITED STATES DISTRICT JUDGE

18 || Presented by: 19 20 | — lee A.AUDERO 21 || UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28