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7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA

10 11 DAMODAR CHANDRA-DAS, Case No. 2:23-cv-03829-FLA (SHK) 12 Plaintiff, 13 v. ORDER DISMISSING COMPLAINT

WITHOUT PREJUDICE

14 DANNY SAMUELS, et al., 15 Defendants. 16

17 18 I. RELEVANT BACKGROUND 19 On October 21, 2023, Plaintiff Damodar Chandra-Das (“Plaintiff”), 20 proceeding pro se, constructively filed1 a Second Amended Complaint (“SAC”), 21 alleging civil rights violations under 42 U.S.C. § 1983 (“§ 1983”) against various 22 defendants (“Defendants”). Dkt. 26 (“SAC”). 23 On April 18, 2024, the court dismissed Plaintiff’s SAC with leave to amend. 24 Dkt. 27. In that order, Plaintiff was granted until May 9, 2024, to file a Third 25 Amended Complaint (“TAC”) and was warned that, “if Plaintiff does not timely 26 27 1 Under the “mailbox rule,” when a pro se prisoner gives prison authorities a 1 file a TAC, the Court will recommend that this action be dismissed with or 2 without prejudice for failure to state a claim, failure to prosecute, and/or 3 failure to obey Court orders under Rule 41(b).” Id. at 15–16 (emphasis in 4 original). 5 On May 17, 2024, Plaintiff filed a Motion for Extension of Time (“EOT”) to 6 file a TAC (“Motion”). Dkt. 28 (“Mot.”). On June 3, 2024, the court granted 7 Plaintiff’s Motion, resulting in a TAC filing deadline of June 30, 2024. Dkt. 29 at 8 1. Plaintiff has not filed a TAC as ordered or otherwise participated in this 9 litigation. 10 II. DISCUSSION 11 District courts have sua sponte authority to dismiss actions for failure to 12 prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. 13 Wabash R.R. Co., 370 U.S. 626, 629–30 (1962); Hells Canyon Pres. Council v. 14 U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating courts may dismiss 15 sua sponte an action under Rule 41(b) for a plaintiff’s failure to prosecute or 16 comply with the Federal Rules of Civil Procedure or the court’s orders); Ferdik v. 17 Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (ordering dismissal for failure to 18 comply with court orders). 19 In deciding whether to dismiss for failure to prosecute or comply with court 20 orders, a district court must consider five factors: “(1) the public’s interest in 21 expeditious resolution of litigation; (2) the court’s need to manage its docket; 22 (3) the risk of prejudice to the defendants; (4) the public policy favoring 23 disposition of cases on their merits; and (5) the availability of less drastic 24 sanctions.” Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); see also 25 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (setting out similar five 26 factors as in Henderson). “Dismissal is appropriate ‘where at least four factors 27 support dismissal, or where at least three factors ‘strongly’ support dismissal.’” 1 Cal. Jan. 16, 2020) (quoting Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th 2 Cir. 1998). In a case involving sua sponte dismissal, however, the fifth Henderson 3 factor regarding the availability of less drastic sanctions warrants special focus. 4 Hernandez, 138 F.3d at 399. 5 Here, the first two factors—public interest in expeditious resolution of 6 litigation and the court’s need to manage its docket—weigh in favor of dismissal. 7 Despite an extension of time being granted and Plaintiff being warned that the case 8 would be dismissed if a TAC was not timely filed, Plaintiff has failed to timely file 9 a TAC. Plaintiff’s failure to prosecute and follow court orders hinders the court’s 10 ability to move this case toward disposition and suggests Plaintiff does not intend 11 to litigate this action diligently. 12 The third factor—prejudice to defendants—also weighs in favor of 13 dismissal. A rebuttable presumption of prejudice to a defendant arises when a 14 plaintiff unreasonably delays prosecution of an action. See In re Eisen, 31 F.3d 15 1447, 1452–53 (9th Cir. 1994) (citations omitted). Here, Plaintiff has not offered 16 any excuse for failing to comply with the court’s order and this factor, thus, also 17 favors dismissal. 18 The fourth factor—public policy in favor of deciding cases on the merits— 19 ordinarily weighs against dismissal. However, it is Plaintiff’s responsibility to 20 move litigation towards disposition at a reasonable pace and to avoid dilatory and 21 evasive tactics. See Morris v. Morgan Stanley, 942 F.2d 648, 652 (9th Cir. 1991). 22 Plaintiff has not met this responsibility despite having been: (1) instructed on his 23 responsibilities; (2) granted sufficient time in which to discharge them; and 24 (3) warned of the consequences of failure to do so. Under these circumstances, 25 though this factor usually favors a plaintiff, it does not outweigh Plaintiff’s failure 26 to obey court orders or to file documents within the time granted. 27 The fifth factor—availability of less drastic sanctions—also weighs in favor 1 | Plaintiff's compliance with court orders and participation in this litigation. 2 | Plaintiff, however, has shown he is either unwilling or unable to comply with court 3 | orders by failing to file timely responsive documents or to cooperate otherwise in 4 | prosecuting this action. The court already granted Plaintiff a continuance at his 5 | request and, thus, is not aware of any lesser sanction that is available at this time. 6 | See Henderson, 779 F.2d at 1424 (“The district court need not exhaust every 7 | sanction short of dismissal before finally dismissing a case but must explore 8 | possible and meaningful alternatives.’’). 9 Accordingly, because it appears Plaintiff has abandoned this litigation, and 10 | because Plaintiff has violated court orders, the court DISMISSES the action 11 | without prejudice. 12 II. ORDER 13 Based on the foregoing, IT IS ORDERED THAT judgment be entered 14 | DISMISSING this action without prejudice. 15 16 IT IS SO ORDERED. 17 18 | Dated: August 5, 2024 19 FERNANDO L. AENLLE-ROCHA United States District Judge 20 21 22 23 24 25 26 27 28