Case 8:20-cv-01190-SSS-ADS Document 50 Filed 08/29/22 Page 1 of 6 Page ID #:925

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9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 DANIEL JOSEPH MARQUEZ, Case No. 8:20-cv-01190 SSS (ADS) 12

Petitioner, 13 ORDER SUMMARILY 14 v. DISMISSING PETITION FOR WRIT OF HABEAS CORPUS 15 M. POLLARD, et al.,

16 Respondent. 17

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24 Case 8:20-cv-01190-SSS-ADS Document 50 Filed 08/29/22 Page 2 of 6 Page ID #:926

1 I. INTRODUCTION 2 Before the Court is a First Amended Petition for Writ of Habeas Corpus by a 3 Person in State Custody filed by Petitioner Daniel Joseph Marquez (“Petitioner”). 4 (Dkt. No. 37.) On March 21, 2022, the Court received returned mail from 5 Petitioner’s listed address: R.J. Donovan Prison, 480 Alta Rd., San Diego, CA 6 7 92179. (Dkt. No. 41.) On April 6, 2022, Respondent filed a Motion to Dismiss the 8 First Amended Petition. (Dkt. No. 42.) Petitioner’s opposition, if any, was due on 9 April 26, 2022. (See Dkt. 7 at 2.) Petitioner did not file an opposition to the 10 Motion to Dismiss. 11 On July 5, 2022, the Court received returned mail. (Dkt. No. 45.) As a 12 result, on July 8, 2022, the Court issued an Order Regarding Failure to Update 13 14 Address and ordered Petitioner to update his address by no later than July 29, 15 2022. (Dkt. No. 46.) On July 28, 2022, the Court again received returned mail. 16 (Dkt. No. 47.) On August 2, 2022, the Court issued an Order to Show Cause 17 Regarding Failure to Update Address, ordering Petitioner to show cause why this 18 action should not be dismissed, or in the alternative, ordering Petitioner to file a 19 20 Notice of Change of Address by August 16, 2022. (Dkt. No. 48.) On August 22, 21 2022, the Court received the August 2, 2022 Order as returned mail. (Dkt. No. 49.) 22 As of today’s date, Petitioner has not filed a Notice of Change of Address with an 23 address at which he can receive mail. 24 2 Case 8:20-cv-01190-SSS-ADS Document 50 Filed 08/29/22 Page 3 of 6 Page ID #:927

1 II. FAILURE TO KEEP COURT APPRISED OF CURRENT ADDRESS 2 Petitioner failed to keep the Court apprised of his current address and other 3 contact information, which he is required to do as a pro se litigant. L.R. 41-6. If a 4 pro se party has not filed a notice of change of address within 14 days of the 5 service of a Court order, the action is subject to dismissal for failure to prosecute. 6 7 Id. 8 In this case, the Court received returned mail four times beginning on March 9 21, 2022. (Dkt. Nos. 41, 45, 47, 49.) The Court issued an Order Regarding Failure 10 to Update Address on July 8, 2022, ordering Petitioner to update his address by no 11 later than July 29, 2022. (Dkt. No. 46.) Upon receiving returned mail, the Court 12 issued an Order to Show Cause Regarding Failure to Update Address on August 2, 13 14 2022, ordering Petitioner to respond by no later than August 16, 2022. (Dkt. 15 No. 48.) Since then, Petitioner has not filed a Notice of Change of Address nor 16 otherwise communicated with the Court. Petitioner does not have a telephone 17 number or email address on file with the Court. Consequently, this action is 18 subject to dismissal for failure to prosecute. 19 20 III. FAILURE TO PROSECUTE AND COMPLY WITH COURT 21 ORDERS 22 Petitioner has failed to prosecute this habeas petition and comply with court 23 orders. Petitioner did not file an opposition to the Motion to Dismiss or a Notice of 24 3 Case 8:20-cv-01190-SSS-ADS Document 50 Filed 08/29/22 Page 4 of 6 Page ID #:928

1 Change of Address by the court-ordered deadlines. He also has not informed the 2 Court of his other contact information. The July 8, 2022 Order Regarding Failure 3 to Update Address and the August 2, 2022 Order to Show Cause expressly 4 cautioned Petitioner that failure to respond would result in a recommendation that 5 the action be dismissed for failure to prosecute and obey Court orders pursuant to 6 7 the Central District of California’s Local Rule (“Local Rule”) 41-6 and Federal 8 Rule of Civil Procedure 41(b). (Dkt. Nos. 46, 48.) As of the date of this Order, 9 approximately four months has passed since Petitioner’s opposition was due and 10 more than six months has passed since Petitioner’s last pleading in this matter. 11 (See Dkt. Nos. 7 at 2, 37, 39.) Petitioner has not complied with the Court’s orders 12 requiring his response regarding his current address, nor has he communicated 13 14 with the Court. 15 Petitioner’s repeated failure to respond despite court orders to do so reflects 16 a lack of prosecution of the case and failure to comply with court orders. In Carey 17 v. King,

(9th Cir. 1988), the Ninth Circuit cited the following 18 factors as relevant to the Court’s determination of whether to dismiss an action for 19 20 failure to prosecute: “(1) the public’s interest in expeditious resolution of litigation; 21 (2) the court’s need to manage its docket; (3) the risk of prejudice to the 22 defendants; (4) the public policy favoring disposition of cases on their merits; and 23 (5) the availability of less drastic sanctions.”

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1 Upon consideration of the five Carey factors, the Court finds that 2 Petitioner’s failure to prosecute his case and failure to comply with the Court’s 3 orders warrant dismissal. The first two Carey factors—the public’s interest in 4 expeditiously resolving this litigation and the Court’s interest in managing the 5 docket—weigh in favor of dismissal. The Court cannot hold this case in abeyance 6 7 indefinitely awaiting Petitioner’s response to the Court’s directive. The third 8 factor—risk of prejudice to Respondent—also weighs in favor of dismissal since a 9 presumption of injury arises from the occurrence of unreasonable delay in 10 prosecuting an action. Anderson v. Air West, Inc.,

(9th Cir. 11 1976) (stating that the “law presumes injury from unreasonable delay”). The 12 fourth factor—the public policy favoring disposition of cases on their merits—is 13 14 greatly outweighed by the factors in favor of dismissal. 15 Finally, Petitioner has already been cautioned twice of the consequences of 16 his failure to prosecute and ordered to show cause why the action should not be 17 dismissed. Petitioner has been afforded opportunities to respond yet has not done 18 so. Moreover, the Court is unable to correspond with Petitioner regarding his case 19 20 without his current contact information. No sanction lesser than dismissal is 21 feasible here. Thus, dismissal of this action is warranted under Federal Rule of 22 Civil Procedure 41(b) and Local Rule 41-6. 23 /// 24 5 ase 8:20-cv-01190-SSS-ADS Document 50 Filed 08/29/22 Page6of6 Page ID #:93

1|/IV. CONCLUSION 2 IT IS THEREFORE ORDERED that this action be summarily DISMISSED 5 WITHOUT PREJUDICE pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule 41-6. 6 IT IS SO ORDERED.

7 ||Dated: August 29, 2022 THE HONORABLE’SUNSHINE S. SYKES 9 United States District Judge 10 Presented by: 11 /s/ Autumn D. Spaeth || THE HONORABLE AUTUMN D. SPAETH 13 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24