1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 QUINTERO DANIEL, Case No. 21cv1412-DMS (BGS) BOOKING #18148776, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILING vs. TO PROSECUTE IN COMPLIANCE 14 WITH COURT ORDER SAN DIEGO COUNTY SHERIFF’S 15 OFFICE, 16 Defendant. 17 18 19 On August 5, 2021, Plaintiff Quintero Daniel, incarcerated at the Vista Detention 20 Facility in Vista, California, and proceeding pro se, filed this civil rights action pursuant to 21

. (ECF No. 1.) The Complaint was accompanied by a Motion to proceed 22 in forma pauperis. (ECF No. 2.) 23 On August 11, 2021, the Court denied Plaintiff’s motion to proceed in forma 24 pauperis because he failed to provide the Court with sufficient financial information as 25 required by

(a)(2). (ECF No. 3.) This action was dismissed without 26 prejudice to Plaintiff to pay the entire civil filing fee or file a properly supported in forma 27 pauperis application on or before September 27, 2021. (Id. at 3.) Plaintiff was instructed 28 that if he failed to timely prepay the civil filing fee or timely complete and submit a 1 properly supported in forma pauperis application the Court would enter a final judgment 2 of dismissal. (Id.) That Order was returned to the Court from the address provided by 3 Plaintiff as undeliverable. (ECF No. 4.) 4 Over six months have elapsed since the September 27, 2021, deadline has passed 5 and Plaintiff has not paid the filing fee or submitted an in forma pauperis application or 6 otherwise contacted the Court. This Court has discretion to sua sponte dismiss a case for 7 lack of prosecution or failure to comply with a court order. Henderson v. Duncan, 779

, 1423 (9th Cir. 1986); see also Fed. R. Civ. P. 41(b) (providing for involuntary 9 dismissal for failure to prosecute or comply with the federal rules or court order). “The 10 failure of the plaintiff eventually to respond to the court’s ultimatum–either by amending 11 the complaint or by indicating to the court that [he] will not do so–is properly met with the 12 sanction of a Rule 41(b) dismissal.” Edwards v. Marin Park,

, 1065 (9th 13 Cir. 2004); see also S.D. Cal. CivLR 83.11.b (“A party proceeding pro se must keep the 14 court and opposing parties advised as to current address. If mail directed to a pro se 15 plaintiff by the Clerk at the plaintiff’s last designated address is returned by the Post Office, 16 and if such plaintiff fails to notify the Court and opposing parties within 60 days thereafter 17 of the plaintiff’s current address, the Court may dismiss the action without prejudice for 18 failure to prosecute.”) 19 “In determining whether to dismiss a claim for failure to prosecute or failure to 20 comply with a court order, the Court must weigh the following factors: (1) the public’s 21 interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; 22 (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic 23 alternatives; and (5) the public policy favoring disposition of cases on their merits.” 24 Pagtalunan v. Galaza,

(9th Cir. 2002), citing Ferdik v. Bonzelet, 963

, 1260-61 (9th Cir. 1992). Because the Court has informed Plaintiff of his need 26 to pay the filing fee or request an extension of time to do so and has not done so or contacted 27 the Court, factors one, two and four weigh in favor of dismissal. See Yourish v. California 28 Amplifier,

(9th Cir. 1999) (“[T]he public’s interest in expeditious 1 || resolution of litigation always favors dismissal.”); Pagtalunan,

(“The trial 2 judge is in the best position to determine whether the delay in a particular case interferes 3 || with docket management and the public interest.”); Nevijel v. North Coast Life Insurance 4 ||Co.,

(9th Cir. 1981) (a court is not required to exhaust all alternatives 5 ||prior to dismissal). Factor five does not weigh against dismissal. See In re 6 || Phenylpropanolamine (PPA) Prod. Liab. Litig.,

(9th Cir. 2006) (the 7 || public policy favoring disposition on the merits does not weigh against dismissal where 8 || plaintiffs “conduct impedes progress in that direction.”) Only factor three does not weigh 9 favor of dismissal. See Pagtalunan,

(where defendants have not 10 || appeared, “[w]e have previously recognized that pendency of a lawsuit is not sufficiently 11 || prejudicial in and of itself to warrant dismissal.”’) 12 Weighing these factors, the Court finds that a final judgment of dismissal is 13 appropriate. See Hernandez v. City of El Monte,

(9th Cir. 1998) (“We 14 || may affirm a dismissal where at least four factors support dismissal, or where at least three 15 || factors ‘strongly’ support dismissal.”’) (internal citation omitted), quoting Ferdik,

1263. 17 CONCLUSION AND ORDER 18 Accordingly, the Court DISMISSES this civil action without prejudice based on 19 || Plaintiff's failure to prosecute by paying the civil filing fee or submitting a properly 20 supported in forma pauperis application as required by Court’s August 11, 2021, Order. 21 Court DIRECTS the Clerk of Court to enter a final judgment of dismissal and close 22 || the file. 23 IT IS SO ORDERED. 24 Dated: March 28, 2022 » 25 a Yn: 56 Hon. Dana M. Sabraw, Chief Judge United States District Court 27 28 3

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