Case 8:22-cv-01459-FMO-GJS Document 7 Filed 10/19/22 Page 1 of 4 Page ID #:48

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 LEONARD BERRY, Case No. 8:22-cv-1459-FMO (GJS)

12 Plaintiff ORDER DISMISSING ACTION FOR FAILURE TO PROSCUTE 13 v.

14 DON BARNES, et al.,

15 Defendants.

16 INTRODUCTION 17 On August 4, 2022, Leonard Berry (“Plaintiff”), a state prisoner proceeding 18 pro se and in forma pauperis, filed a civil rights Complaint pursuant to

1983. [Dkt. 1. (“Complaint”)]. A preliminary screening of that Complaint revealed 20 that it was largely unreadable. Accordingly, the Court ordered Plaintiff to submit a 21 legible version of his Complaint so that the Court could complete its screening 22 obligations as required by 28 U.S.C. § 1915A(a) and 42 U.S.C. § 1997e(c)(1) by no 23 later than September 18, 2022. [Dkt. 6.] The Court expressly cautioned Plaintiff 24 that his failure to file a legible Complaint could result in the dismissal of the action. 25 The Clerk served a copy of that Order on Plaintiff directly at the address which he 26 provided to the Court. [Dkt. 6.] 27 28 Case 8:22-cv-01459-FMO-GJS Document 7 Filed 10/19/22 Page 2 of 4 Page ID #:49

1 Over a month has expired since Plaintiff’s deadline to respond to the Court or 2 otherwise prosecute this case. Indeed, as of the date of this Order, Plaintiff has not 3 filed a legible copy of his complaint or otherwise prosecuted this case since August 4 4, 2022. 5 DISCUSSION 6 Under Federal Rule of Civil Procedure 41(b), the Court may sua sponte 7 dismiss an action for failure to prosecute and comply with court orders. Link v. 8 Wabash R.R. Co.,

(1962); Ferdik v. Bonzelet,

, 9 1260-63 (9th Cir. 1992). In determining whether dismissal for lack of prosecution is 10 proper, a court must weigh several factors, including: (1) the public’s interest in 11 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 12 risk of prejudice to defendants; (4) the public policy favoring the disposition of 13 cases on their merits; and (5) the availability of less drastic sanctions. In re 14 Phenylpropanolamine (PPA) Prods. Liab. Litig.,

(9th Cir. 15 2006). 16 Here, the first and second factors favor dismissal. See Yourish v. Cal. 17 Amplifier,

, 990 (9th Cir. 1999) (“[T]he public’s interest in expeditious 18 resolution of litigation always favors dismissal.”). Plaintiff has failed to respond to 19 the Court’s order or seek an extension. Plaintiff’s conduct hinders the Court’s 20 ability to move this case toward disposition and indicates that he does not intend to 21 litigate this action diligently. 22 The third factor (the risk of prejudice to the defendant) also favors dismissal. 23 Although the mere pendency of a lawsuit is not prejudicial in and of itself, a failure 24 to provide a reasonable excuse for defaulting on a court order can indicate sufficient 25 prejudice to warrant dismissal. See Yourish, 191 F.3d at 991-92 (“Plaintiff[’s] paltry 26 excuse for his default on the judge’s order indicates that there was sufficient 27 prejudice to Defendants . . . .”). Here, Plaintiff has provided no explanation – much 28 less a reasonable one – for his failure to respond to the Order instructing him to file 2 Case 8:22-cv-01459-FMO-GJS Document 7 Filed 10/19/22 Page 3 of 4 Page ID #:50

1 a legible copy of his complaint. See id.; Sw. Marine Inc. v. Danzig,

, 2 1138 (9th Cir. 2000) (“Unreasonable delay is the foundation upon which a court 3 may presume prejudice.”). 4 The fourth factor generally weighs against dismissal; however, it assumes that 5 a litigant has complied with the statutory obligations imposed under Rule 11(b) and 6 has manifested a diligent desire to prosecute his or her claims. See In re 7 Phenylpropanolamine (PPA) Prods. Liab. Litig.,

(9th Cir. 8 2006) (“[T]his factor lends little support to a party whose responsibility it is to move 9 a case toward disposition on the merits but whose conduct impedes progress in that 10 direction.”) (citation and internal quotation marks omitted). Where, as here, the 11 prisoner-plaintiff has failed to respond to a valid Court order, the fourth factor 12 favors dismissal. 13 Finally, the fifth factor, the availability of less drastic sanctions, weighs in 14 favor of dismissal where, as here, the Order instructing Plaintiff to file a legible 15 copy of his complaint warned Plaintiff that his failure to comply with the Court’s 16 Order could result in dismissal of this action. Having been so cautioned yet having 17 ignored the Order to file a legible complaint, it appears that Plaintiff has no interest 18 in pursuing this case. Indeed, he implicitly has conceded that he has no interest in 19 prosecuting it. Under these circumstances, dismissal is appropriate. 20 A balancing of these factors thus leads to the conclusion that dismissal 21 without prejudice, pursuant to Rule 41(b), is warranted. See Ferdik v. Bonzelet, 963

, 1263 (9th Cir. 1992) (dismissal appropriate when strongly supported by 23 three factors); Malone v. United States Postal Serv.,

, 133 n.2 (9th Cir. 24 1987) (dismissal appropriate when supported by four factors). 25 /// 26 /// 27 /// 28 /// 3 Cas@ 8:22-cv-01459-FMO-GJS Document Filed 10/19/22 Page4of4 Page ID #:51

l CONCLUSION 2 Accordingly, for the foregoing reasons, IT Is ORDERED that this case is 3 || dismissed without prejudice, pursuant to Rule 41(b) of the Federal Rules of Civil 4 || Procedure. Judgment shall be entered accordingly. 6 IT IS SO ORDERED. g || DATED: October 19, 2022 9 /s/ 10 FERNANDO M. OLGUIN UNITED STATES DISTRICT JUDGE

12 PRESENTED BY: 13 14 { We | 1S || GAIL J. STANDISH 16 || UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28