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7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA

10 11 ADOLFO RODRIGUEZ, Case No. 8:24-cv-00818-KK-SHK 12 Plaintiff, ORDER DISMISSING COMPLAINT 13 v. 14 ORANGE COUNTY PROBATION 15 DEPARTMENT, 16 Defendant.

17 18 I. BACKGROUND 19 On April 12, 2024, Plaintiff Adolfo Rodriguez (“Plaintiff”), proceeding pro 20 se and in forma pauperis (“IFP”), filed a Complaint (“Complaint”) under 42 U.S.C. 21 § 1983 (“§ 1983”), alleging violations of his civil rights. Electronic Case Filing 22 Number (“ECF No.”) 1, Compl. 23 On June 24, 2024, the Court issued an Order Dismissing Complaint with 24 Leave to Amend (“ODLA”). ECF No. 7, ODLA. In the ODLA, Plaintiff was 25 instructed to file a First Amended Complaint (“FAC”) within twenty-one days of 26 the date of the ODLA. Id. at 9. As such, Plaintiff had twenty-one days from June 27 24, 2024, until July 15, 2024, to file a FAC. Plaintiff was warned that if he “does 1 with or without prejudice for failure to state a claim, failure to prosecute, 2 ad/or failure to obey Court orders under Federal Rule of Civil Procedure 3 [(“Rule”)] 41(b).” Id. at 10 (emphasis in the original). 4 On August 6, 2024, the Court issued an Order to Show Cause Re: Complaint 5 (“OSC”) that instructed Plaintiff to file a FAC by August 20, 2024. ECF No. 8, 6 OSC at 2. The Court, once again, cautioned Plaintiff “that failure to file a FAC 7 will result in the Court recommending that this action be dismissed with or 8 without prejudice for failure to prosecute and timely comply with Court 9 orders.” Id. (emphasis in the original). 10 As of the date of this Order, Plaintiff has not filed a FAC. Additionally, it is 11 worth noting that there is no indication that Plaintiff is incarcerated or is otherwise 12 in a situation that would prohibit him from timely following this Court’s orders. 13 II. DISCUSSION 14 District courts have sua sponte authority to dismiss actions for failure to 15 prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. 16 Wabash R.R. Co.,

(1962); Hells Canyon Pres. Council v. 17 U.S. Forest Serv.,

(9th Cir. 2005) (stating courts may dismiss an 18 action under Rule 41(b) sua sponte for a plaintiff’s failure to prosecute or comply 19 with the Rules or the court’s orders); Ferdik v. Bonzelet,

(9th 20 Cir. 1992) (ordering dismissal for failure to comply with court orders). 21 In deciding whether to dismiss for failure to prosecute or comply with court 22 orders, a district court must consider five factors: “(1) the public’s interest in 23 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) 24 the risk of prejudice to the defendants; (4) the public policy favoring disposition of 25 cases on their merits; and (5) the availability of less drastic sanctions.” Henderson 26 v. Duncan,

(9th Cir. 1986); see also Pagtalunan v. Galaza, 27

(9th Cir. 2002) (setting out similar five factors as in Henderson). 1 least three factors ‘strongly’ support dismissal.’” Neal v. Reslan, No. CV 19- 2 09291 PA (ASx),

, at *1 (C.D. Cal. Jan. 16, 2020) (quoting 3 Hernandez v. City of El Monte,

(9th Cir. 1998). In a case 4 involving sua sponte dismissal, however, the fifth Henderson factor regarding the 5 availability of less drastic sanctions warrants special focus. Hernandez,

. 7 Here, the first two factors—public interest in expeditious resolution of 8 litigation and the Court’s need to manage its docket—weigh in favor of dismissal. 9 Despite extensions and warnings, Plaintiff has failed to respond to multiple Court 10 orders and has failed to file his FAC. This failure to prosecute and follow Court 11 orders hinders the Court’s ability to move this case toward disposition and suggests 12 Plaintiff does not intend to litigate this action diligently. 13 The third factor—prejudice to Defendants—also weighs in favor of 14 dismissal. A rebuttable presumption of prejudice to a defendant arises when 15 plaintiffs unreasonably delay prosecution of an action. See In re Eisen,

(9th Cir. 1994) (citations omitted). Here, Plaintiff has not offered 17 any excuse for his failure to comply with the Court’s orders and respond in a 18 timely manner. This “prejudice” element thus favors dismissal. 19 The fourth factor—public policy in favor of deciding cases on the merits— 20 ordinarily weighs against dismissal. However, it is Plaintiff’s responsibility to 21 move litigation towards disposition at a reasonable pace and to avoid dilatory and 22 evasive tactics. See Morris v. Morgan Stanley,

(9th Cir. 1991). 23 Plaintiff has not met this responsibility despite having been: (1) instructed on his 24 responsibilities; (2) granted sufficient time in which to discharge them; and (3) 25 repeatedly warned of the consequences of failure to do so. See ECF Nos. 7, 26 ODLA; 8, OSC. Under these circumstances, though this policy favors Plaintiff, it 27 does not outweigh Plaintiff’s failure to obey Court orders or to file responsive 1 The fifth factor—availability of less drastic sanctions—also weighs in favor 2 | of dismissal. The Court cannot move the case toward disposition without 3 | Plaintiff's compliance with Court orders or participation in this litigation. Despite 4 | repeated attempts by the Court to obtain a response, Plaintiff has shown he is either 5 | unwilling or unable to comply with Court orders by failing to file responsive 6 | documents or unable to otherwise cooperate in prosecuting this action. The Court 7 | is not aware of any lesser sanction that is available in this case. See Henderson, 8 |

(“The district court need not exhaust every sanction short of 9 | dismissal before finally dismissing a case but must explore possible and 10 | meaningful alternatives.”’). 1] Accordingly, because it appears that Plaintiff has abandoned this litigation, 12 | and because Plaintiff has repeatedly defied Court orders, the Court DISMISSES 13 | this case, without prejudice. 14 II. ORDER 15 Based on the foregoing, IT IS ORDERED THAT Judgment be entered 16 | DISMISSING this case without prejudice. 17

19 | DATED: August 23, 2024 20 United Siates District Judge 21 | Presented by: 22 BU pe ete | HON. SHASHIH. KEWALRAMANI. United States Magistrate Judge 25 26 27 28