1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WAYNE ELIJAH JONES, Case No. 21cv1972-JAH (JLB) INMATE #20902359, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILING vs. TO PROSECUTE IN COMPLIANCE 14 WITH COURT ORDER OCEANSIDE POLICE DEPARTMENT, 15 et al., 16 Defendants. 17 18 19 On November 18, 2021, Plaintiff Wayne Elijah Jones, incarcerated at the Vista 20 Detention Facility in Vista, California, and proceeding pro se, filed this civil rights action 21 pursuant to

. (ECF No. 1.) The Complaint was accompanied by a Motion 22 to proceed in forma pauperis. (ECF No. 2.) 23 On November 23, 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 January 7, 2022. (Id. at 3.) Plaintiff was instructed that 28 if he failed to timely prepay the civil filing fee or timely complete and submit a properly 1 supported in forma pauperis application the Court would enter a final judgment of 2 dismissal. (Id.) 3 Over three months have elapsed since the January 7, 2022, deadline has passed and 4 Plaintiff has not paid the filing fee or submitted an in forma pauperis application. This 5 Court has discretion to sua sponte dismiss a case for lack of prosecution or failure to 6 comply with a court order. Henderson v. Duncan,

(9th Cir. 1986); 7 see also Fed. R. Civ. P. 41(b) (providing for involuntary dismissal for failure to prosecute 8 or comply with the federal rules or court order). “The failure of the plaintiff eventually to 9 respond to the court’s ultimatum–either by amending the complaint or by indicating to the 10 court that [he] will not do so–is properly met with the sanction of a Rule 41(b) dismissal.” 11 Edwards v. Marin Park,

, 1065 (9th Cir. 2004). 12 “In determining whether to dismiss a claim for failure to prosecute or failure to 13 comply with a court order, the Court must weigh the following factors: (1) the public’s 14 interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; 15 (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic 16 alternatives; and (5) the public policy favoring disposition of cases on their merits.” 17 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 19 to pay the filing fee or file a motion to proceed in forma pauperis but he has failed to do 20 so, factors one, two and four weigh in favor of dismissal. See Yourish v. California 21 Amplifier,

(9th Cir. 1999) (“[T]he public’s interest in expeditious 22 resolution of litigation always favors dismissal.”); Pagtalunan,

(“The trial 23 judge is in the best position to determine whether the delay in a particular case interferes 24 with docket management and the public interest.”); Nevijel v. North Coast Life Insurance 25 Co.,

(9th Cir. 1981) (a court is not required to exhaust all alternatives 26 prior to dismissal). Factor five does not weigh against dismissal. See In re 27 Phenylpropanolamine (PPA) Prod. Liab. Litig.,

(9th Cir. 2006) (the 28 public policy favoring disposition on the merits does not weigh against dismissal where 1 || plaintiff's “conduct impedes progress in that direction.”) Only factor three does not weigh 2 favor of dismissal. See Pagtalunan,

(where defendants have not 3 || appeared, “[w]e have previously recognized that pendency of a lawsuit is not sufficiently 4 || prejudicial in and of itself to warrant dismissal.”’) 5 Weighing these factors, the Court finds that a final judgment of dismissal is 6 ||appropriate. See Hernandez v. City of El Monte,

(9th Cir. 1998) (“We 7 affirm a dismissal where at least four factors support dismissal, or where at least three 8 || factors ‘strongly’ support dismissal.”’) (internal citation omitted), quoting Ferdik,

1263. 10 CONCLUSION AND ORDER 11 Accordingly, the Court DISMISSES this civil action without prejudice based on 12 ||Plaintiff's failure to prosecute by paying the civil filing fee or submitting a properly 13 || supported in forma pauperis application as required by Court’s November 23, 2021, Order. 14 || The Court DIRECTS the Clerk of Court to enter a final judgment of dismissal and close 15 || the file. 16 IT IS SO ORDERED. Mb ste 18 || Dated: April 13, 2022 19 j/Hon. John A. Houston 0 United States District Judge 21 22 23 24 25 26 27 28