Case 5:21-cv-00358-JWH-MAA Document 21 Filed 01/26/22 Page 1 of 8 Page ID #:122

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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11 PAUL MURRAY AYDELOTT, Case No. 5:21-cv-00358-JWH-MAA 12 Petitioner, ORDER DISMISSING PETITION

AND DISMISSING ACTION

13 v. WITHOUT PREJUDICE 14 RAYTHEL FISHER, Warden, 15 Respondent. 16 17 18 19 20 21 22 23 24 25 26 27 28 Case 5:21-cv-00358-JWH-MAA Document 21 Filed 01/26/22 Page 2 of 8 Page ID #:123

1 I. INTRODUCTION AND BACKGROUND 2 On February 24, 2021, Petitioner Paul Murray Aydelott (“Petitioner”), acting 3 pro se, filed a petition for writ of habeas corpus in the United States District Court 4 for the Eastern District of California (“Petition”). (Pet., ECF No. 1.) The claims in 5 the Petition are not clear (see id.), although Petitioner references California 6 Proposition 47 (id. at 7).1 On February 25, 2021, the United States District Court 7 for the Eastern District of California transferred the Petition to this Court. (ECF 8 No. 2.) 9 On March 3, 2021, the Court issued an Order identifying certain procedural 10 defects with the Petition: (1) Petitioner failed to use Form CV-69, the standard 11 form for 28 U.S.C. § 2254 (“Section 2254”) petitions filed in this District, which 12 prevented the Court from being able to ascertain Petitioner’s claims and to 13 determine whether those claims are timely and fully exhausted; (2) Petitioner did 14 not name the proper Respondent for a Section 2254 proceeding; and (3) Petitioner 15 did not pay the $5 filing fee or submit an application for leave to proceed in forma 16 pauperis (“March 3 Order”). (Mar. 3, 2021 Or., ECF No. 5.) 17 On March 11, 2021, the Court received and filed Petitioner’s Response to the 18 March 3 Order. (Response, ECF No. 6.) In this Response, Petitioner stated that he 19 was in quarantine and thus did not have access to the prison law library or other 20 resources. (Id. at 1.) Petitioner named Warden Fisher as the warden of his 21 institution of confinement, Valley State Prison. (Id.) Petitioner further stated that 22 his mother, Joan Murray, would pay the $5 filing fee on his behalf. (Id.) On 23 March 30, 2021, the Court received the $5 filing fee. (See ECF No. 7.) 24 On April 5, 2021, the Court issued an Order acknowledging that Petitioner 25 had resolved two of the procedural issues identified in the March 3 Order by 26 identifying Warden Fisher as a Respondent and paying the $5 filing fee (“April 5 27 1 Pinpoint citations in this Order refer to the page numbers appearing in the 28 ECF-generated headers of the cited documents.

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1 Order”). (Apr. 5, 2021 Or., ECF No. 8, at 2.) The Court further ordered Petitioner 2 to file an amended petition using the required Form CV-69 by May 3, 2021. (Id. at 3 2, 3.) 4 On April 29, 2021, the Court received and filed Petitioner’s First Amended 5 Petition (“FAP”), which appears on Form CV-69. (FAP, ECF No. 11.) On 6 May 19, 2021, the Court issued an Order finding that Petitioner’s FAP was nearly 7 unintelligible, the legal claims and the relief sought were unclear, and the FAP 8 appeared to be subject to summary dismissal as frivolous (“May 19 Order”). 9 (May 19, 2021 Order, ECF No. 12.) Out of consideration for Petitioner’s pro se 10 status, the Court afforded Petitioner an opportunity to respond. (Id. at 3.) 11 Petitioner’s response was due no later than June 18, 2021. (Id.) 12 On July 28, 2021, in the absence of any correspondence from Petitioner, the 13 Court issued an Order to Show Cause why the Petition should not be dismissed for 14 failure to prosecute and to comply with Court orders (“July 28 OSC”). (July 28, 15 2021 OSC, ECF No. 14.) Petitioner’s response to the July 28 OSC initially was due 16 no later than August 27, 2021. (Id. at 2.) On September 3, 2021, the Court granted 17 Petitioner’s motion for an extension of time in which to respond until 18 September 27, 2021. (ECF No. 17.) 19 On September 8, 2021, the Court received and filed Petitioner’s request for 20 appointment of counsel. (ECF No. 18.) On September 14, 2021, the Court denied 21 appointment of counsel without prejudice. (ECF No. 19.) 22 On October 28, 2021, the Court issued another Order to Show Cause why the 23 proceedings should not be dismissed for failure to prosecute based on Petitioner’s 24 failure to respond to the Court’s May 19 Order (“October 28 OSC”). (Oct. 28, 25 2021 OSC, ECF No. 20.) The Court warned Petitioner that “[f]ailure to comply 26 with this order by November 29, 2021 will result in a recommendation that this 27 action be dismissed for failure to prosecute and for failure to comply with 28

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1 court orders pursuant to Federal Rule of Civil Procedure 41(b).” (Id. at 3 2 (emphasis in original).) 3 To date, Petitioner has not responded to the October 28 OSC. 4 II. ANALYSIS 5 A. Legal Standard 6 Central District of California Local Rule 7-12 provides in pertinent part: 7 The Court may decline to consider any memorandum or other 8 document not filed within the deadline set by order or local rule. The 9 failure to file any required document, or the failure to file it within the 10 deadline, may be deemed consent to the granting or denial of the motion 11 . . . . 12 C.D. Cal. L.R. 7-12; see also Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) 13 (affirming dismissal on the basis of an unopposed motion pursuant to local rule). 14 In addition, district courts may dismiss cases sua sponte for failure to 15 prosecute or for failure to comply with a court order under Federal Rule of Civil 16 Procedure 41(b). Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 17 689 (9th Cir. 2005); see also Link v. Wabash R.R. Co., 370 U.S. 626, 629–30 (1962) 18 (holding that federal district courts have “inherent power” to dismiss cases sua 19 sponte for lack of prosecution). Unless the Court states otherwise, a dismissal under 20 Rule 41(b)—other than for lack of jurisdiction, improper venue, or failure to join a 21 party—operates as an adjudication on the merits. See Fed. R. Civ. P. 41(b). 22 Dismissal, however, “is a harsh penalty and is to be imposed only in extreme 23 circumstances.” Allen v. Bayer Corp. (In re: Phenylpropanolamine (PPA) Prods. 24 Liab. Litig.), 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone v. U.S. Postal 25 Serv., 833 F.2d 128, 130 (9th Cir. 1987)). “A Rule 41(b) dismissal must be 26 supported by a showing of unreasonable delay.” Omstead v. Dell, 594 F.3d 1081, 27 1084 (9th Cir. 2010) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 28 1986) (quotation marks omitted)).

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1 Before dismissing an action for failure to follow a local rule, failure to 2 prosecute, or failure to comply with a court order, a district court must weigh five 3 factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the 4 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the 5 public policy favoring disposition of cases of their merits; and (5) the availability of 6 less drastic sanctions.” Ghazali, 46 F.3d at 53–54 (quoting Henderson v. Duncan, 7 779 F.2d 1421, 1423 (9th Cir. 1986)) (failure to follow a local rule); see also 8 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (failure to prosecute or 9 failure to comply with a court order). The Ninth Circuit will “affirm a dismissal 10 where at least four factors support dismissal, or where at least three factors strongly 11 support dismissal.” Dreith v. Nu Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011) 12 (quoting Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). 13 B. The Factors Support Dismissal. 14 1. The Public’s Interest in Expeditious Resolution and the Court’s 15 Need to Manage its Docket 16 The first and second factors (the public’s interest in expeditious resolution of 17 litigation and the Court’s need to manage its docket)2 weigh in favor of dismissal. 18 “Orderly and expeditious resolution of disputes is of great importance to the rule of 19 law.” Prods. Liab. Litig., 460 F.3d at 1227. Thus, “[t]he public’s interest in 20 expeditious resolution of litigation always favors dismissal.” Pagtalunan, 291 F.3d 21 at 642 (quoting Yourish, 191 F.3d at 990). In addition, district courts “have an 22 inherent power to control their dockets,” Prods. Liab. Litig., 460 F.3d at 1227 23 (quoting Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th 24 Cir. 1986)), and “are best suited to determine when delay in a particular case 25

26 2 Courts usually review the first factor in conjunction with the second factor. 27 See Prods. Liab. Litig., 460 F.3d at 1227; Moneymaker v. CoBen (In re Eisen), 31 F.3d 1447, 1452 (9th Cir. 1994) (The first two factors are usually reviewed together 28 “to determine if there is an unreasonable delay.”).

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1 interferes with docket management and the public interest.” Yourish, 191 F.3d at 2 990 (quoting Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984)). 3 To date, Petitioner has not filed a response to the Court’s October 28 OSC. 4 Indeed, Petitioner has not communicated with the Court since September 8, 2021. 5 The Court concludes that Petitioner’s failure to comply with Court orders and failure 6 to prosecute the lawsuit constitute unreasonable delay. See Thomas v. Maricopa 7 Cty. Jail, 265 F. App’x 606, 607 (9th Cir. 2008) (holding that district court did not 8 abuse its discretion by dismissing pro se prisoner lawsuit for failure to respond to a 9 court order for almost three months). Petitioner’s noncompliance and inaction also 10 interfere with the public’s interest in the expeditious resolution of this litigation and 11 hinder the Court’s ability to manage its docket. See Prods. Liab. Litig., 460 F.3d at 12 1227 (“[The Ninth Circuit] defer[s] to the district court’s judgment about when a 13 delay becomes unreasonable ‘because it is in the best position to determine what 14 period of delay can be endured before its docket becomes unmanageable.’” (quoting 15 Moneymaker v. CoBen (In re Eisen), 31 F.3d 1447, 1451 (9th Cir. 1994))). For 16 these reasons, the first and second factors favor dismissal. 17 2. Risk of Prejudice to Respondent 18 The third factor also supports dismissal without prejudice. The risk of 19 prejudice to a respondent is related to a petitioner’s reason for failure to prosecute an 20 action. See Pagtalunan, 291 F.3d at 642. Petitioner has offered no reason for failing 21 to file a response to the Court’s May 19 Order, July 28 OSC, or October 28 OSC. 22 The absence of any reason indicates sufficient prejudice to Respondent. See 23 Yourish, 191 F.3d at 991–92 (holding that a paltry excuse for default indicates 24 sufficient prejudice to the defendants); see also Laurino v. Syringa Gen. Hosp., 279 25 F.3d 750, 753 (9th Cir. 2002) (holding that “a presumption of prejudice arises from a 26 plaintiff’s unexplained failure to prosecute”). 27 28

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1 3. Availability of Less Drastic Alternatives 2 The fourth factor also supports dismissal without prejudice. “Warning that 3 failure to obey a court order will result in dismissal can itself meet the 4 ‘consideration of alternatives’ requirement.” Prods. Liab. Litig., 460 F.3d at 1229 5 (citing, inter alia, Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1991) 6 (“Moreover, our decisions also suggest that a district court’s warning to a party 7 that his failure to obey the court’s order will result in dismissal can satisfy the 8 ‘consideration of alternatives’ requirement.”)). In its October 28 OSC, the Court 9 warned Petitioner that the Petition would be dismissed if he did not respond to the 10 OSC by November 29, 2021. (Oct. 28, 2021 OSC at 3.) Despite being afforded 11 30 days to comply, Petitioner failed to respond to the OSC. 12 4. Public Policy Favoring Disposition of Cases on Their Merits 13 The fifth factor weighs against dismissal. “We have often said that the 14 public policy favoring disposition of cases on their merits strongly counsels 15 against dismissal.” Prods. Liab. Litig., 460 F.3d at 1228 (citing Hernandez, 138 16 F.3d at 399). On the other hand, “this factor ‘lends little support’ to a party whose 17 responsibility it is to move a case toward disposition on the merits but whose 18 conduct impedes progress in that direction.” Id. (citations omitted). Thus, this 19 factor alone does not preclude dismissal. 20 C. Dismissal of this Action is Appropriate. 21 As discussed above, Petitioner’s failure to comply with Court orders and 22 failure to prosecute this action constitute unreasonable delay. In addition, four of the 23 dismissal factors weigh in favor of dismissal, whereas only one factor weighs 24 against dismissal. “While the public policy favoring disposition of cases on their 25 merits weighs against [dismissal], that single factor is not enough to preclude 26 imposition of this sanction when the other four factors weigh in its favor.” Rio 27 Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1022 (9th Cir. 2002). 28

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1 The Court concludes that dismissal of this action for failure to comply with 2 || Court orders and failure to prosecute is warranted. However, consistent with 3 || Rule 41(b) and this Court’s exercise of its discretion, the dismissal should be without 4 || prejudice. 5 I. CONCLUSION 6 Accordingly, it is hereby ORDERED that (1) the Petition is DISMISSED 7 || without prejudice for failure to comply with a court order and failure to prosecute; 8 || and (2) the Clerk is DIRECTED to enter judgment dismissing this action without 9 || prejudice. 10 |} IV. CERTIFICATE OF APPEALABILITY 11 Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the 12 || United States District Courts, the Court “must issue or deny a certificate of 13 || appealability when it enters a final order adverse to the applicant.” The Court has 14 || considered whether a certificate of appealability is warranted. See 28 U.S.C. □□□ § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). The Court 16 || concludes that a certificate of appealability is not warranted; thus, a certificate of 17 || appealability is DENIED. 18 IT IS SO ORDERED. 19 20 || DATED: January 26, 2022 VY, 21 \ ° 22 UNITED STATES DISTRICT JUDGE 23 || Presented by: 24 { 25 | | see 26 UNITED STATES MAGISTRATE JUDGE 27 28