Case 2:21-cv-07298-PA-MAA Document 15 Filed 04/11/22 Page 1 of 6 Page ID #:72

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2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TONY MORENO, Case No. 2:21-cv-07298-PA (MAA)

12 Plaintiff, ORDER OF DISMISSAL 13 v.

14 L. VACA et al.,

15 Defendants. 16

17 I. SUMMARY OF PROCEEDINGS 18 On September 7, 2021, Plaintiff Tony Moreno (“Plaintiff”), a California state 19 inmate proceeding pro se, filed a Complaint alleging violations of his civil rights 20 pursuant to

(“Section 1983”). (ECF No. 1.) On September 22, 21 2021, the Court granted Plaintiff’s Request to Proceed Without Prepayment of 22 Filing Fees. (ECF Nos. 3, 5, 6.) 23 On December 2, 2021, the Court issued an Order Dismissing Complaint With 24 Leave to Amend (“Order”). (Order, ECF No. 12.) The Court ordered Plaintiff to, 25 no later January 3, 2022, proceed with one of the following options: (1) file a First 26 Amended Complaint (“FAC”); (2) proceed with the Complaint; or (3) voluntarily 27 dismiss the lawsuit. (Id. at 9–11.) The Court “cautioned that failure to respond 28 to this Order may result in dismissal of the lawsuit without prejudice for Case 2:21-cv-07298-PA-MAA Document 15 Filed 04/11/22 Page 2 of 6 Page ID #:73

1 failure to prosecute and/or failure to comply with a court order pursuant to 2 Federal Rule of Civil Procedure 41(b). See C.D. Cal. L.R. 41-1.” (Id. at 11.) 3 On February 1, 2022, in the absence of a response to the Order, the Court 4 issued an Order to Show Cause (“OSC”), ordering Plaintiff to show cause by March 5 3, 2022 why the Court should not recommend that the case be dismissed for want of 6 prosecution. (OSC, ECF No. 14.) The OSC stated that if Plaintiff filed a FAC or a 7 Notice of Dismissal on or before that date, the OSC would be discharged. (Id.) The 8 OSC “advised that failure to comply with this order w[ould] result in a 9 recommendation that the lawsuit be dismissed for failure to prosecute and/or 10 comply with court orders. See Fed. R. Civ. P. 41(b); C.D. Cal. L.R. 41-1.” (Id.) 11 To date, Plaintiff has failed to file a FAC or respond to the Order or OSC. 12 Indeed, Plaintiff has not communicated with the Court since initiating this lawsuit 13 on September 7, 2021. 14 15 II. LEGAL STANDARD 16 District courts may dismiss cases sua sponte for failure to prosecute or for 17 failure to comply with a court order under Federal Rule of Civil Procedure 41(b). 18 Hells Canyon Pres. Council v. U.S. Forest Serv.,

(9th Cir. 2005); 19 see also Link v. Wabash R.R. Co.,

, 629–30 (1962) (holding that the 20 court has “inherent power” to dismiss cases sua sponte for lack of prosecution). 21 Unless the Court states otherwise, a dismissal under Rule 41(b) operates as an 22 adjudication on the merits. Fed. R. Civ. P. 41(b). “Dismissal is a harsh penalty and 23 is to be imposed only in extreme circumstances.” In re: Phenylpropanolamine 24 (PPA) Prods. Liab. Litig.,

(9th Cir. 2006) (quoting Malone v. 25 USPS,

(9th Cir. 1987)). 26 “A Rule 41(b) dismissal ‘must be supported by a showing of unreasonable 27 delay.’” Omstead v. Dell,

(9th Cir. 2010) (quoting Henderson 28 v. Duncan,

(9th Cir. 1986)). In addition, the court must weigh 2 Case 2:21-cv-07298-PA-MAA Document 15 Filed 04/11/22 Page 3 of 6 Page ID #:74

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

(9th Cir. 2002). 6 The Ninth Circuit will “affirm a dismissal where at least four factors support 7 dismissal, or where at least three factors strongly support dismissal.” Dreith v. Nu 8 Image, Inc.,

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

, 990 (9th Cir. 1999)). Finally, “in order to warrant a sanction of 10 dismissal, the party’s violations of the court’s orders must be due to wilfulness or 11 bad faith.” Id. 12 13 III. ANALYSIS 14 A. The Public’s Interest in Expeditious Resolution and the Court’s 15 Need to Manage Its Docket 16 The first and second factors (the public’s interest in expeditious resolution of 17 litigation and the Court’s need to manage its docket)1 weigh in favor of dismissal. 18 “Orderly and expeditious resolution of disputes is of great importance to the rule of 19 law.” In re: Phenylpropanolamine,

. “The public’s interest in 20 expeditious resolution of litigation always favors dismissal.” Pagtalunan,

(quoting Yourish, 191 F.3d at 990). In addition, district courts “have an 22 inherent power to control their dockets,” In re: Phenylpropanolamine,

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

(9th Cir. 24 1986)), and “are best suited to determine when delay in a particular case interferes 25 with docket management and the public interest.” Yourish, 191 F.3d at 990 26 (quoting Ash v. Cvetkov,

(9th Cir. 1984)). 27 1 The first two factors are usually reviewed together “to determine if there is an 28 unreasonable delay.” In re Eisen,

(9th Cir. 1994). 3 Case 2:21-cv-07298-PA-MAA Document 15 Filed 04/11/22 Page 4 of 6 Page ID #:75

1 Plaintiff has failed to file a FAC, has failed to respond to the Order or OSC, 2 and otherwise has not participated in this lawsuit since September 7, 2021. The 3 Court concludes that Plaintiff’s inaction and lack of communication with the Court 4 constitute willful unreasonable delay. See, e.g., Thomas v. Maricopa Cnty. Jail, 5 265 F. App’x. 606, 607 (9th Cir. 2008) (holding that district court did not abuse its 6 discretion by dismissing pro se prisoner lawsuit for failure to respond to a court 7 order for almost three months). Plaintiff’s noncompliance also interferes with the 8 public’s interest in the expeditious resolution of this litigation and hinders the 9 Court’s ability to manage its docket. See In re: Phenylpropanolamine,

1227 (“[The Ninth Circuit] defer[s] to the district court’s judgment about when a 11 delay becomes unreasonable ‘because it is in the best position to determine what 12 period of delay can be endured before its docket becomes unmanageable.”) (quoting 13 In re Eisen,

)). The first and second factors favor dismissal. 14 15 B. Risk of Prejudice to Defendants 16 The third factor (risk of prejudice to the defendants) also weighs in favor of 17 dismissal. “A defendant suffers prejudice if the plaintiff’s actions impair the 18 defendant’s ability to go to trial or threaten to interfere with the rightful decision of 19 the case.” In re: Phenylpropanolamine,

(quoting Adriana Int’l 20 Corp. v. Thoeren,

(9th Cir. 1990)). “The law also presumes 21 prejudice from unreasonable delay.”

The risk of prejudice to a defendant is 22 related to a plaintiff’s reason for failure to prosecute an action. Pagtalunan, 291 23 F.3d at 642. “Whether prejudice is sufficient to support an order of dismissal is in 24 part judged with reference to the strength of the plaintiff’s excuse for the default.” 25 Malone,

. 26 Plaintiff continuously has refused to file a FAC, respond to the Order and 27 OSC, or communicate with the Court, without explanation. As “a presumption of 28 prejudice arises from the plaintiff’s unexplained failure to prosecute,” the third 4 Case 2:21-cv-07298-PA-MAA Document 15 Filed 04/11/22 Page 5 of 6 Page ID #:76

1 factor favors dismissal. See Hernandez v. City of El Monte,

(9th 2 Cir. 1998). 3 4 C. Availability of Less Drastic Alternatives 5 The fourth factor (the availability of less drastic alternatives) also supports 6 dismissal. “The district court need not exhaust every sanction short of dismissal 7 before finally dismissing a case, but must explore possible and meaningful 8 alternatives.” Henderson,

. 9 The Court considered and implemented less drastic alternatives prior to 10 dismissal. The Court warned Plaintiff that failure to respond to the Order and OSC 11 would result in a recommendation that the action be dismissed for failure to 12 prosecute and/or failure to comply with Court orders pursuant to Federal Rule of 13 Civil Procedure 41(b). (Order, OSC.) See In re: Phenylpropanolamine,

1229 (“Warning that failure to obey a court order will result in dismissal can itself 15 meet the ‘consideration of alternatives’ requirement.”). In addition, the Court 16 extended Plaintiff’s deadline to file a FAC or file a Notice of Dismissal from 17 January 3, 2022 to March 3, 2022. See Ferdik v. Bonzelet,

, 1262 18 (9th Cir. 1992) (holding that the district court’s allowance of an additional thirty 19 days for plaintiff to file an amended complaint was an attempt at a less drastic 20 sanction). The fourth factor weighs in favor of dismissal. 21 22 D. Public Policy Favoring Disposition on the Merits 23 As to the fifth factor, “[p]ublic policy favors disposition of cases on the 24 merits.” Pagtalunan,

. However, “a case that is stalled or 25 unreasonably delayed by a party’s failure to comply with deadlines . . . cannot move 26 toward resolution on the merits.” In re: Phenylpropanolamine,

. 27 Thus, “this factor lends little support to a party whose responsibility it is to move a 28 case towards disposition on the merits but whose conduct impedes progress in that 5 Case 2:21-cv-07298-PA-MAA Document 15 Filed 04/11/22 Page6of6 Page ID#:77

1 || direction.” /d. (internal quotation marks omitted). The case has been stalled by 2 || Plaintiffs failure to file a FAC or otherwise respond to the Order or OSC. Still, the 3 || public policy favoring the resolution of disputes on the merits is strong and, under 4 || the circumstances, outweighs Plaintiffs noncompliance and inaction. 6 E. Dismissal Without Prejudice 7 In summary, Plaintiff's failure to file a FAC or otherwise respond to the 8 || Order or OSC, and failure to otherwise participate in this lawsuit since September 9 || 7, 2021, constitute willful unreasonable delay. Four of the Rule 41(b) dismissal 10 || factors weigh in favor of dismissal, whereas only one factor weighs against 11 || dismissal. “While the public policy favoring disposition of cases on their merits 12 || weighs against [dismissal], that single factor is not enough to preclude imposition 13 || of this sanction when the other four factors weigh in its favor.” Rio Props., Inc. v. 14 || Rio Int’l Interlink,

(9th Cir. 2002). The Court concludes that 15 || dismissal of this action for failure to prosecute and to comply with Court orders is 16 || warranted, but, consistent with Rule 41(b) and this Court’s exercise of its 17 || discretion, the dismissal is without prejudice. 18 19 |} IV. CONCLUSION 20 IT THEREFORE IS ORDERED that this lawsuit is DISMISSED without 21 || prejudice. No further filings shall be accepted under this case number. 22 Cte 23 || DATED: April 11, 2022 hi, | Wiz 24 PERCY ANDERSON UNITED STATES DISTRICT JUDGE 25 || Presented by: 26

RIA A. AUDERO 28 || UNITED STATES MAGISTRATE JUDGE