Case 2:22-cv-06775-FMO-JPR Document 9 Filed 11/04/22 Page 1 of 3 Page ID #:20

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SHOMARI ALBERTS, ) Case No. CV 22-6775-FMO (JPR) ) 12 Petitioner, ) ) ORDER DISMISSING HABEAS PETITION 13 v. ) ) 14 ASHLEY WILSON, ) ) 15 Respondent. ) ) 16 17 On September 20, 2022, Shomari Alberts, proceeding pro se, 18 filed a Petition for Writ of Habeas Corpus, purportedly under 28

, signing the Petition as “next of kin to Denyse 20 Bradley,” whose interests Alberts purports to represent. (Pet. 21 at 8.) On September 27, the Magistrate Judge dismissed the 22 Petition with leave to amend, noting that Alberts could not 23 represent Bradley’s interests, citing Local Rule 83-2.2.1 24 (person not represented by counsel may not delegate 25 representation to any other person). The Magistrate Judge 26 pointed out other deficiencies with the Petition as well, 27 including that Wilson, the Respondent, appears to be a private 28 citizen whom Alberts/Bradley want prosecuted. (See Pet. at 7.) 1 Case 2:22-cv-06775-FMO-JPR Document 9 Filed 11/04/22 Page 2 of 3 Page ID #:21

1 The Magistrate Judge warned that if Alberts or Bradley did not 2 file an amended petition correcting the many deficiencies by no 3 later than October 27, “this action will likely be dismissed for 4 failure to prosecute” and for the reasons stated in the dismissal 5 order. To date no amended petition has been filed, nor has an 6 extension of time been sought. 7 Courts may dismiss lawsuits that are not diligently 8 prosecuted. See Link v. Wabash R.R.,

, 629-30 9 (1962); Carey v. King,

(9th Cir. 1988) (per 10 curiam). In determining whether to dismiss a pro se petitioner’s 11 action for failure to prosecute, a court must consider (1) the 12 public’s interest in expeditious resolution of litigation, (2) 13 the court’s need to manage its docket, (3) the risk of prejudice 14 to the respondent, (4) the public policy favoring disposition of 15 cases on their merits, and (5) the availability of less drastic 16 sanctions. See Pagtalunan v. Galaza,

(9th Cir. 17 2002). Unreasonable delay creates a rebuttable presumption of 18 prejudice to the opposing party that can be overcome only with an 19 affirmative showing of just cause by the petitioner. See In re 20 Eisen,

(9th Cir. 1994). 21 Here, the first, second, third, and fifth factors 22 militate in favor of dismissal. The Court cannot simply leave 23 hanging on its docket a case without a viable initial pleading. 24 Indeed, because Alberts cannot represent Bradley’s interests and 25 Bradley didn’t sign the Petition herself, the Court doesn’t know 26 if the latter even wants to bring this action. Further, the 27 presumption of prejudice to Respondent has not been rebutted. 28 Finally, there does not appear to be any less drastic sanction 2 Case 2:22-cv-06775-FMO-JPR Document 9 Filed 11/04/22 Page 3 of 3 Page ID #:22

1 the Court can take, as no amended petition was filed even after 2 the warning that the action would likely be dismissed otherwise. 3 Although the fourth factor weighs against dismissal — as it does 4 in every case — the other factors together outweigh the public’s 5 interest in disposing of the case on its merits. 6 Accordingly, the Petition and this action are dismissed for 7 the reasons stated in the Magistrate Judge’s September 27, 2022 8 Order, which the Court has read and accepts, and under the 9 Court’s inherent power to achieve the orderly and expeditious 10 disposition of cases by dismissing actions for failure to 11 prosecute.1 12 LET JUDGMENT BE ENTERED ACCORDINGLY. 13 DATED: November 4, 2022 /s/ 14 FERNANDO M. OLGUIN U.S. DISTRICT JUDGE 15 Presented by: 16 17 _____________________ Jean Rosenbluth 18 U.S. Magistrate Judge 19 20 21 22 23 24 25 26 27 1In dismissing this action, the Court expresses no view on 28 whether any subsequent habeas petition would be timely or otherwise procedurally proper. 3