1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ARTURO OSIEL VALENCIA BARRERA, Case No. 3:23-cv-04031-JSC

8 Plaintiff, ORDER DISMISSING ACTION FOR 9 v. FAILURE TO PROSECUTE

10 ALAMEDA COUNTY SHERIFFS OFFICE, 11 Defendant.

12

13 Plaintiff Valencia Barrera, who is representing himself, filed this civil rights action against the 14 Alameda County Sheriff’s Office. On November 20, 2023, Defendant filed a motion to dismiss for 15 failure to state a claim. (Dkt. No. 10.) After Plaintiff failed to respond, the Court issued an order to 16 show cause as to why this action should not be dismissed for failure to prosecute. (Dkt. No. 14.) To 17 date, Plaintiff has not responded to the order to show cause and the time to do so has run. 18 Pursuant to Federal Rule of Civil Procedure 41(b), the court may dismiss an action for failure 19 to prosecute or to comply with a court order. See Hells Canyon Preservation Council v. U.S. Forest 20 Serv.,

(9th Cir. 2005) (recognizing that a court may sua sponte dismiss an action 21 pursuant to Rule 41(b)). “A Rule 41(b) dismissal must be supported by a showing of unreasonable 22 delay.” Omstead v. Dell, Inc.,

(9th Cir. 2010) (internal citation and quotation 23 marks omitted) overruled on other grounds by Langere v. Verizon Wireless Servs., LLC,

1115, 1117 (9th Cir. 2020). In determining whether a Rule 41(b) dismissal is appropriate, the court 25 must weigh the following factors: “(1) the public’s interest in expeditious resolution of litigation; (2) 26 the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 27 favoring disposition of cases on their merits and (5) the availability of less drastic sanctions.” 1 Henderson v. Duncan,

(9th Cir. 1986). Dismissal is appropriate “where at least 2 four factors support dismissal ... or where at least three factors strongly support dismissal.” Hernandez 3 v. City of El Monte,

(9th Cir. 1998) (internal citation and quotation marks omitted). 4 Here, four of the five Henderson factors weigh in favor of dismissal. “The first two factors— 5 the public interest in expeditious resolution of litigation and the Court's need to manage its docket— 6 relate to the efficient administration of judicial business for the benefit of all litigants with cases 7 pending.” Nealey v. Transportacion Maritima Mexicana, S.A.,

(9th Cir. 1980). 8 By failing to respond to the motion to dismiss and the Court’s order to show cause Plaintiff has 9 delayed adjudication of this action. Non-compliance with the Court’s orders wastes “valuable time that 10 [the Court] could have devoted to other ... criminal and civil cases on its docket.” Ferdik v. Bonzelet, 11

(9th Cir. 1992). 12 As for the third factor, while “the pendency of the lawsuit is not sufficiently prejudicial itself to 13 warrant dismissal,” the delay caused by Plaintiff’s failure to prosecute this action despite the Court’s 14 order weighs in favor of dismissal. Yourish v. California Amplifier,

(9th Cir. 1999). 15 The fourth factor is the availability of less drastic sanctions. The Court already cautioned 16 Plaintiff’s failure to respond would result in dismissal of this action. (Dkt. No. 14.) Thus, the Court has 17 fulfilled its “obligation to warn the plaintiff that dismissal is imminent.” Oliva v. Sullivan,

(9th Cir. 1992); see also Ferdik,

(“A district court’s warning to a party that 19 failure to obey the court’s order will result in dismissal can satisfy the ‘consideration of [less drastic 20 sanctions] requirement.”). The fourth factor thus weighs in favor of dismissal. 21 The last factor, which favors disposition on the merits, by definition weighs against dismissal. 22 Pagtalunan v. Galaza,

(9th Cir. 2002) (“Public policy favors disposition of cases on 23 the merits. Thus, this factor weighs against dismissal.”). 24 In sum, four of the five relevant factors weigh strongly in favor of dismissing this action in its 25 entirety. See Pagtalunan,

(affirming dismissal where three factors favored dismissal, 26 while two factors weighed against dismissal). The Court therefore DISMISSES this action without 27 prejudice. 1 IT IS SO ORDERED. 2 || Dated: January 31, 2024 3 4 ne J&CQUELINE SCOTT CORLEY 5 United States District Judge 6 7 8 9 10 11 12

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