1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 1] AARON LAMBERT, Case No. 2:19-cv-04969-JGB-KES 12 Petitioner, ORDER DISMISSING ACTION 13 V. WITHOUT PREJUDICE 14 | UNITED STATES OF AMERICA, 15 Respondent. 16 17 18 I. 19 INTRODUCTION 20 On June 7, 2019, the Court received a filing from Petitioner Aaron Lambert 21 | (“Petitioner”) captioned, “Motion Requesting Judicial Recommendation of (12) 22 | Months Community Confinement Placement.” (Dkt. 1.) Petitioner explained that 23 | he is a federal prisoner currently incarcerated at the Metropolitan Detention Center 24 | (‘MDC’) in Los Angeles, California, with a projected release date of December 25 | 2020. (Id. at 1.) Petitioner seeks a judicial recommendation under 18 U.S.C. 26 | § 3621(b) that he spend that last year of his prison term in a Residential Reentry 27 || Center (“RRC”) in Henderson, Nevada, so that he can attend classes at the College 28

1 | of Southern Nevada starting in January 2020. (Id. at 1-2.) 2 On June 11, 2019, the Court issued an order requiring Petitioner to file notice 3 | clarifying the relief he sought, on or before July 11, 2019. (Dkt. 3.) Although the 4 | Court Clerk had docketed Petitioner’s filing as a Petition for a Writ of Habeas 5 || Corpus under 28 U.S.C. § 2241, it was unclear whether Petitioner intended to 6 | (1) file a § 2241 petition challenging the location of his imprisonment, or (2) move 7 | the sentencing court for a recommendation that in December 2019, the Bureau of 8 || Prisons (“BOP”) transfer him to an RRC near Henderson, Nevada. (Id. at 2.) The 9 | Court advised: “Failure to file a timely response to this order may result in the 10 | involuntary dismissal of this action.” (1d.) 1] On June 26, 2019, mail directed to Petitioner containing documents from the 12 | Clerk’s office was returned to the Court as undeliverable because “name and 13 | number do not match.” (Dkt. 4.) It appeared that this return occurred because the 14 | Court’s online system, CM/ECF, listed an incorrect Register Number for Petitioner. 15 | On June 28, 2019, the Court resent its order requiring clarification and sua sponte 16 | extended Petitioner’s deadline to respond to July 29, 2019. (Dkt. 5.) On July 1, 17 | 2019, the order requiring clarification, initially sent under Petitioner’s incorrect 18 | Register Number, was also returned as undeliverable because “name and number do 19 | not match.” (Dkt. 6.) 20 Per the BOP inmate locator, Petitioner is still incarcerated at MDC in Los 21 | Angeles and his projected release date is December 2020 (i.c., he should have 22 || received the order for clarification resent with the correct Register Number). See 23 | https://www.bop.gov/inmateloc/. Nevertheless, Petitioner never responded. 24 Il. 25 DISCUSSION 26 It is well-established that a district court may dismiss an action for failure to 27 | prosecute, failure to follow court orders, or failure to comply with the federal or 28 | local rules. See Fed. R. Civ. P. 41(b); Link v. Wabash R. Co., 370 U.S. 626, 629-

1 | 30 (1962); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). Local 2 | Rule 41-1 provides that “[c]ivil suits which have been pending for an unreasonable 3 | period of time without any action having been taken therein may, after notice, be 4 | dismissed for want of prosecution.” 5 In determining whether to dismiss a case for failure to prosecute or failure 6 | to comply with court orders, a district court should consider the following five 7 | factors: (1) the public’s interest in expeditious resolution of litigation; (2) the 8 || court’s need to manage its docket; (3) the risk of prejudice to Respondent; (4) the 9 || availability of less drastic sanctions; and (5) the public policy favoring disposition 10 | of cases on their merits. See In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 11 | 460 F.3d 1217, 1226-28, 1234-52 (9th Cir. 2006); Gibbs v. Hedgpeth, 389 F. 12 | App’x 671, 673 (9th Cir. 2010) (applying five factors in habeas proceeding). The 13 || test is not “mechanical,” but provides a “non-exhaustive list of things” to “think 14 | about.” Valley Eng’rs v. Elec. Eng’g Co., 158 F.3d 1051, 1057 (9th Cir. 1998). 15 Here, the five factors support dismissal of the action for want of 16 | prosecution, based on Petitioner’s failure to comply with the Court’s order 17 | requiring clarification regarding the nature of the relief sought. The first factor— 18 | the public’s interest in the expeditious resolution of litigation—“‘always favors 19 | dismissal.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). 20 The second factor—the Court’s need to manage its docket—also supports 21 | dismissal. Petitioner’s “noncompliance has caused [this] action to come to a 22 | complete halt, thereby allowing [him] to control the pace of the docket rather than 23 | the Court.” Id. (internal quotations marks omitted). Petitioner’s inaction frustrates 24 | the public’s interest in the expeditious resolution of litigation and the Court’s need 25 || to manage its docket. 26 The third factor—prejudice to Respondent—supports dismissal. “[T]he 27 | failure to prosecute diligently is sufficient by itself to justify a dismissal, even in 28 | the absence of a showing of actual prejudice to the [respondent] from the failure ...

1 | The law presumes injury from unreasonable delay.” Southwest Marine, Inc. v. 2 | Danzig, 217 F.3d 1128, 1138 (9th Cir. 2000) (citing Moneymaker v. CoBen (In re 3 | Eisen), 31 F.3d 1447, 1451 (9th Cir. 1994)). 4 The fourth factor—availability of less drastic sanctions—favors dismissal. 5 | As explained above, Petitioner has failed to respond to the Court’s order requiring 6 | clarification. It also does not seem like Petitioner intended to seek habeas relief in 7 | this Court. His filing does not appear to challenge the legality of his conviction or 8 || sentence; rather, he apparently seeks a transfer. Under 18 U.S.C. § 3621(b), BOP 9 | determines the place of a federal prisoner’s imprisonment, but the BOP considers 10 | multiple factors including “‘any statement by the court that imposed the sentence 11 || —(A) concerning the purposes for which the sentence to imprisonment was 12 | determined to be warranted; or (B) recommending a type of penal or correctional 13 | facility as appropriate.” 18 U.S.C. § 3621(b)(4) (emphasis added). Because this 14 | Court did not impose Petitioner’s sentence, it cannot grant the relief he appears to 15 | request. 16 The fifth factor—public policy favoring a disposition of an action on its 17 | merits—weighs against dismissal. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th 18 | Cir. 2002). The impact of that factor is mitigated here, however, because it is 19 | apparent from the face of his filing that Petitioner is not entitled to relief in this 20 | Court; his request should be directed to the sentencing court. 21 Since four of five enumerated factors support dismissal, it is recommended 22 | that this action be dismissed pursuant to Rule 41(b) and Local Rule 41-1. Local 23 | Rule 41-2 states that, “[u]nless the Court provides otherwise, any dismissal 24 | pursuant to [Local Rule] 41-1 shall be without prejudice.” See also Fed. R. Civ. P. 25 | 41(b) (“[u]nless the dismissal order states otherwise,” a dismissal pursuant to 26 | Federal Rule of Civil Procedure 41(b) operates as an adjudication on the merits 27 | absent exceptions that are not relevant here). In general, a court has discretion to 28 | dismiss an action under Rule 41(b) with or without prejudice. See Fed. R. Civ. P.

1 | 41(b); Al-Torki v. Kaempen, 78 F.3d 1381, 1385 (9th Cir. 1996). Considering all 2 | of the circumstances, action is dismissed in its entirety without prejudice. 3 III. 4 CONCLUSION 5 For the foregoing reasons, this action is hereby dismissed in its entirety 6 | without prejudice. 7 g DATED: August 14, 2019 Lo) 10 JESUS j3\ BERNAL - ll UNITHDISTATES DISTRICT JUDGE 12 | Presented by: 8) Teun 6. Seat 14 | KAREN E. SCOTT 15 | UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28