1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN FRANCISCO DIVISION 7 8 ARCELIO JOSEPH REYBOL, Case No. 25-cv-03086-PHK

9 Plaintiff, REPORT AND RECOMMENDATION FOR DISMISSAL WITHOUT 10 v. PREJUDICE

11 SPACE FORCE, et al., Re: Dkts. 6, 7 Defendants. 12

13 14 RELEVANT BACKGROUND 15 On April 4, 2025, pro se Plaintiff Arcelio Joseph Reybol filed the original Complaint in this 16 action, as well as an application to proceed in forma pauperis (“IFP”). See Dkts. 1-2. On June 23, 17 2025, the Court denied without prejudice Plaintiff’s motion for leave to proceed in forma pauperis 18 because his financial affidavit was “incomplete and inconsistent” and thus failed to provide 19 sufficient information regarding Plaintiff’s assets and liabilities from which the Court could 20 determine whether or not Plaintiff is entitled to IFP status. [Dkt. 6 at 1]. The Court granted Plaintiff 21 leave to file an amended or corrected in forma pauperis application by July 21, 2025. Id. at 5. 22 Alternatively, the Court advised that Plaintiff could pay the filing fee on or before this same deadline 23 and thus forego his request to proceed in forma pauperis. Id. The Court’s June 23, 2025, Order 24 stated that “[s]hould Plaintiff Reybol fail to file a properly completed, amended in forma pauperis 25 application by the deadline and should he fail to pay the filing fee by the deadline as well, this will 26 have negative consequences for this case, including the potential issuance of a report and 27 recommendation of denial of leave to proceed in forma pauperis with prejudice or such other further 1 prejudice).” Id. at 6. 2 Because Plaintiff neither filed an amended in forma pauperis application by the July 21, 3 2025 deadline nor sought an extension of time from the Court to do so, on October 22, 2025, this 4 Court issued an Order to Show Cause requiring Plaintiff to show cause as to why this case should 5 not be dismissed for failure to prosecute and failure to comply with the Court’s Orders. [Dkt. 7]. In 6 that October 22, 2025 Order to Show Cause, the Court explicitly warned Plaintiff that failure to 7 respond and show cause as directed would result in this Court’s issuing a recommendation to dismiss 8 the case, in its entirety. Id. at 2. The Court ordered Plaintiff to either file a written response to the 9 Order to Show Cause; file an amended in forma pauperis application which addressed and cured 10 the deficiencies noted by the Court’s previous Order; or forego in forma pauperis status and pay the 11 $405 filing fee by no later than November 14, 2025. Id. 12 To date, Plaintiff has not responded to the Court’s October 22, 2025 Order to Show Cause 13 in any manner, nor has Plaintiff sought an extension of time from the Court to do so. It is now well- 14 past the original deadline to file an amended in forma pauperis application after denial of the original 15 application, and also well past the deadline to file a response to the Order to Show Cause as required 16 by this Court. See Dkts. 6-7. 17 DISCUSSION 18 The Court possesses the inherent power to dismiss an action sua sponte if a plaintiff fails to 19 prosecute their action or fails to comply with court orders. See Link v. Wabash R.R. Co.,

626, 629-30 (1962) (dismissal for failure to prosecute); Yourish v. Cal. Amplifier,

, 987 21 (9th Cir. 1999) (dismissal for failure to comply with court orders). Rule 41(b) allows for the sua 22 sponte dismissal of an action “[i]f the plaintiff fails to prosecute or to comply with [the Federal 23 Rules of Civil Procedure] or a court order.” See Fed. R. Civ. P. 41(b). Based on Plaintiff’s failure 24 to respond both to the original Order denying Plaintiff’s IFP application and to the Order to Show 25 Cause, the Court finds that sufficient grounds exist to dismiss this case pursuant to Federal Rule of 26 Civil Procedure 41(b). Plaintiff has plainly failed to obey Court Orders and to diligently prosecute 27 this action. Indeed, Plaintiff has failed to prosecute the case at all. 1 public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) 2 the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 3 merits; and (5) the availability of less drastic alternatives.” Applied Underwriters, Inc. v. 4 Lichtenegger,

(9th Cir. 2019) (quoting Yourish, 191 F.3d at 990). Dismissal is 5 appropriate “where at least four factors support dismissal, or where at least three factors strongly 6 support dismissal.” Dreith v. Nu Image, Inc.,

(9th Cir. 2011) (quoting Yourish, 7 191 F.3d at 990). 8 Here, Plaintiff has failed to comply with this Court’s Order to Show Cause and has failed to 9 comply with this Court’s previous Order to file an amended application to proceed in forma 10 pauperis. See Dkts. 6-7. The Court finds that an analysis of all the factors, in total, strongly favors 11 a conclusion that this action should be dismissed. 12 As to the first factor, the public’s interest in expeditious resolution of litigation will be 13 satisfied by dismissal. See Pagtalunan v. Galaza,

(9th Cir. 2002) (quoting 14 Yourish, 191 F.3d at 990) (“The public’s interest in expeditious resolution of litigation always favors 15 dismissal.”). Relatedly, as to the second factor, the Court’s need to manage its docket will be served 16 by dismissing this action. Id. (“It is incumbent upon the Court to manage its docket without being 17 subject to routine noncompliance of litigants[.]”). 18 The third factor marginally favors dismissal. While “pendency of a lawsuit is not sufficiently 19 prejudicial in and of itself to warrant dismissal,” unreasonable delay creates a presumption of 20 prejudice. Id.; see also In re Eisen,

(9th Cir. 1994). Here, while Defendants have 21 not yet been served, there is potentially some quantum of prejudice to having an open action against 22 them on the public docket. Plaintiff’s continuing delay and inaction also risks prejudice to 23 Defendants due to the potential loss of evidence due to the passage of time, difficulty in locating 24 evidence that may end up getting archived or stored in difficult-to-retrieve locations or electronic 25 formats, fading of witnesses’ memories, and loss of access or control over employees or other 26 witnesses (due to changes in jobs, moving to other nations or other parts of this country, 27 unavailability due to disability or death, or other such circumstances). See Pagtalunan,

Humboldt Cnty., No. 23-cv-02421-RMI,

, at *2 (N.D. Cal. Oct. 10, 2023) (noting 2 witness unavailability as one basis to find prejudice). The Court is cognizant that the delay here only 3 risks such prejudice (as opposed to a situation where such prejudice has been shown to actually 4 exist), and thus the Court finds that this factor only marginally favors dismissal. 5 The fourth and fifth factors also favor dismissal of this action. By requiring Plaintiff to 6 explain why this case should not be dismissed for lack of prosecution and allowing Plaintiff to 7 satisfy the Order to Show Cause simply by filing an explanation, Plaintiff was on notice that the 8 failure to adequately respond to the Order to Show Cause could result in the dismissal of the action. 9 [Dkt. 7]. Despite this notice, Plaintiff made no attempt to respond to the Order to Show Cause or 10 otherwise show diligence in the prosecution of this case. Villalobos v. Vilsack,

, 11 552 (9th Cir. 2015) (affirming district court's dismissal without prejudice for failure to prosecute 12 after the plaintiff did not respond to order to show cause). 13 Finally, the Court has considered whether lesser sanctions are appropriate. Here, the Court 14 concludes that dismissal without prejudice is appropriate. Ash v. Cvetkov,

(9th 15 Cir. 1984) (“[D]ismissal without prejudice is a more easily justified sanction for failure to 16 prosecute.”). If this lawsuit is not being pursued and merely sits in limbo, there is no opportunity 17 to resolve the action on its merits or to apply other sanctions (short of dismissal). Realistically, 18 monetary sanctions or other lesser sanctions imposed against a pro se litigant may not be either 19 practical or proportionate because, for a pro se Plaintiff seeking leave to proceed in forma pauperis, 20 monetary sanctions may be unintentionally or unnecessarily punitive. As a corollary, monetary 21 sanctions imposed on a pro se Plaintiff seeking IFP status may be ineffective and illusory because 22 they may be uncollectable. Further, this action is in its infancy and it is recommended that dismissal 23 be without prejudice; the severity of such a sanction is significantly mitigated in this context. 24 As the foregoing record shows, Plaintiff has been given numerous warnings and 25 opportunities to explain himself to avoid this outcome. See Oliva v. Sullivan,

(9th 26 Cir. 1992) (“The district judge has an obligation to warn the plaintiff that dismissal is imminent.”). 27 Having considered all the relevant factors and applicable legal standards, the Court finds that the ] is appropriate. See Dreith,

. Accordingly, the Court finds appropriate, and thus 2 || recommends, the “less-drastic” sanction of dismissal of this action without prejudice. See 3 || Henderson v. Duncan,

, 1424 (9th Cir. 1986) (“The district court need not exhaust 4 || every sanction short of dismissal before finally dismissing a case, but must explore possible and 5 || meaningful alternatives.”’). 6 CONCLUSION 7 For all the reasons discussed herein, the Court ORDERS that the Order to Show Cause [Dkt. 8 7] is made ABSOLUTE. 9 Given the procedural posture of this case, the Defendant has not yet been served with the 10 || Complaint and thus not all Parties have consented to Magistrate Judge jurisdiction in this matter. 11 See

. Accordingly, the Court ORDERS that this case be reassigned to a District 12 || Judge for resolution in light of this REPORT and RECOMMENDATION that the case be 13 DISMISSED WITHOUT PREJUDICE for failure to diligently prosecute this case and failure to 14 || obey Court Orders, including for failure to respond to the October 22, 2025 Order to Show Cause 3 15 [Dkt. 7], and for failure to file an amended application to proceed in forma pauperis in response to a 16 || the Order of June 23, 2025 [Dkt. 6]. See Hells Canyon Pres. Council v. U.S. Forest Serv.,

17 || 683, 689 (9th Cir. 2005) (“[T]he consensus among our sister circuits, with which we agree, is that Z 18 courts may dismiss under Rule 41(b) sua sponte, at least under certain circumstances.”). 19 If Plaintiff wishes to file an objection to this Report and Recommendation, Plaintiff 20 must do so within fourteen (14) days of the date on which Plaintiff receives this Report and 21 Recommendation. 22 The Clerk of Court is DIRECTED to send a copy of this Order and Report and 23 Recommendation for Dismissal to Plaintiff's address of record. 24 || ITISSO ORDERED AND IT IS SO REPORTED AND RECOMMENDED. 25 Dated: December 9, 2025 CAH 27 PETER H. KANG © 28 United States Magistrate Judge