Case 2:20-cv-09593-ODW-SHK Document 9 Filed 03/09/22 Page 1 of 5 Page ID #:69

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8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 12 ERIC A. LANGLEY, Case No. 2:20-cv-09593-ODW-SHK 13 Plaintiff, 14 v.

ORDER DISMISSING CASE

15 TWIN TOWERS CORRECTIONAL 16 FACILITY, et al., 17 Defendants.

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19 For the following reasons, this case is DISMISSED without prejudice. 20 I. BACKGROUND 21 On October 20, 2020, Plaintiff Eric A. Langley (“Plaintiff”), proceeding pro 22 se and in forma pauperis (“IFP”), filed a Complaint (“Complaint” or “Compl.”) 23 under 42 U.S.C § 1983 (“§ 1983”) against Twin Towers Correctional Facility 24 (“Twin Towers”), Los Angeles County Sheriff Department (“LASD”), Nickolay 25 Teophilov, and D. Estrella, each in their official capacities (collectively, 26 “Defendants”), for alleged violations of his constitutional rights by Defendants 27 while Plaintiff was incarcerated as a pretrial detainee at Twin Towers. Electronic 28 Case Filing Number (“ECF No.”) 1, Compl. at 2-3. On November 22, 2021, the Case 2:20-cv-09593-ODW-SHK Document 9 Filed 03/09/22 Page 2 of 5 Page ID #:70

Court issued an Order Dismissing the Complaint, Without Prejudice and With Leave 1 to Amend (“ODLA”). ECF No. 6, ODLA. The ODLA stated that if Plaintiff 2 wished to continue to prosecute this action, Plaintiff must “file a First Amended 3 Complaint (“FAC”) within twenty-one days of the service date” of the ODLA, 4 which made the FAC due on or before December 13, 2021. Id. at 8-9. 5 Plaintiff failed to timely file a FAC. Therefore, on December 29, 2021, the 6 Court issued an Order to Show Cause (“OSC”), directing Plaintiff to either advise 7 the Court that Plaintiff no longer wished to pursue the action, file the FAC, or show 8 9 good cause in writing, if any existed, why Plaintiff had not timely filed his FAC, and 10 why the Court should not recommend that the action be dismissed for failure to 11 prosecute and comply with Court Orders. ECF No. 7, OSC at 1. Plaintiff was 12 instructed to respond to the OSC on or before January 12, 2022. Id. 13 Plaintiff again failed to timely respond. Therefore, on February 9, 2022, the 14 Court issued a Final OSC. ECF No. 8, Final OSC. Plaintiff was ordered “by 15 February 22, 2022, TO SHOW CAUSE, why this case should not be dismissed for 16 failure to prosecute and follow Court orders.” Id. at 1 (emphasis in original). 17 Plaintiff was warned that failure to timely respond to the OSC “will result in 18 dismissal of the case for failure to prosecute and follow Court orders.” Id. at 2 19 (emphasis in original). 20 As of the date of this Order, Plaintiff has failed to file a FAC, respond to the 21 Court’s Final OSC, or otherwise participate in this litigation. 22 II. LEGAL STANDARD 23 District courts have sua sponte authority to dismiss actions for failure to 24 prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. Wabash 25 R.R. Co., 370 U.S. 626, 629-30 (1962); Hells Canyon Pres. Council v. U.S. Forest 26 Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating courts may dismiss an action under 27 Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute 28 or comply with the Federal Rules of Civil Procedure or the court’s orders); Ferdik v. 2 Case 2:20-cv-09593-ODW-SHK Document 9 Filed 03/09/22 Page 3 of 5 Page ID #:71

Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (ordering dismissal for failure to 1 comply with court orders). 2 In deciding whether to dismiss for failure to prosecute or comply with court 3 orders, a district court must consider five factors: “(1) the public’s interest in 4 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 5 risk of prejudice to the defendants; (4) the public policy favoring disposition of 6 cases on their merits; and (5) the availability of less drastic sanctions.” Henderson 7 v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); see also Pagtalunan v. Galaza, 291 8 9 F.3d 639, 642 (9th Cir. 2002) (setting out five factors similar to those in Henderson). 10 “Dismissal is appropriate ‘where at least four factors support dismissal, or where at 11 least three factors ‘strongly’ support dismissal.’” Neal v. Reslan, No. CV 19-09291 12 PA (ASx), 2020 WL 754366, at *1 (C.D. Cal. Jan. 16, 2020) (quoting Hernandez v. 13 City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (internal citations omitted) 14 (citing Ferdik, 963 F.2d at 1263)). In a case involving sua sponte dismissal, 15 however, the fifth Henderson factor regarding the availability of less drastic 16 sanctions warrants special focus. Hernandez, 138 F.3d at 399. 17 III. DISCUSSION 18 Here, the first two factors—public interest in expeditious resolution of 19 litigation and the Court’s need to manage its docket—weigh in favor of dismissal. 20 Despite being warned that failure to timely respond to the OSC “will result in 21 dismissal of the case for failure to prosecute and follow Court orders[,]” ECF No. 8, 22 Final OSC at 2 (emphasis in original), Plaintiff has failed to do so. This failure to 23 prosecute and follow Court orders hinders the Court’s ability to move this case 24 toward disposition and suggests that Plaintiff does not intend to litigate this action 25 diligently. 26 The third factor—prejudice to Defendants—also weighs in favor of dismissal. 27 A rebuttable presumption of prejudice to a defendant arises when a plaintiff 28 unreasonably delays prosecuting an action. See In re Eisen, 31 F.3d 1447, 1452-53 3 Case 2:20-cv-09593-ODW-SHK Document 9 Filed 03/09/22 Page 4 of 5 Page ID #:72

(9th Cir. 1994) (citations omitted). Nothing suggests such a presumption is 1 unwarranted in this case, considering that Plaintiff has failed to comply with the 2 Court’s OSC, offer any excuse for his failure to comply with the Court’s OSC, or 3 respond in a timely manner. Thus, this “prejudice” element favors dismissal. 4 The fourth factor—public policy in favor of deciding cases on the merits— 5 ordinarily weighs against dismissal. However, it is Plaintiff’s responsibility to move 6 litigation towards disposition at a reasonable pace and to avoid dilatory and evasive 7 tactics. See Morris v. Morgan Stanley, 942 F.2d 648, 652 (9th Cir. 1991). Plaintiff 8 9 has not met this responsibility despite having been: (1) instructed on his 10 responsibilities; (2) granted sufficient time in which to discharge them; and 11 (3) warned of the consequences of failure to do so. Under these circumstances, 12 though this policy favors Plaintiff, it does not outweigh Plaintiff’s failure to obey 13 Court orders or to file responsive documents within the time granted. 14 The fifth factor—availability of less drastic sanctions—also weighs in favor 15 of dismissal. The Court cannot move the case toward disposition without Plaintiff’s 16 compliance with Court orders or participation in this litigation. Despite the Court’s 17 attempt to obtain a response, Plaintiff has shown he is either unwilling or unable to 18 comply with Court orders by failing to file responsive documents, or otherwise 19 cooperate in prosecuting this action. Thus, the Court is not aware of any lesser 20 sanction that is available in this case. See Henderson, 779 F.2d at 1424 (“The 21 district court need not exhaust every sanction short of dismissal before finally 22 dismissing a case but must explore possible and meaningful alternatives.”) (citation 23 omitted); Roman v. Smith, No. 2:18-07909 PA (ADS), 2019 WL 8013120, at *1 24 (C.D. Cal. Nov. 18, 2019). 25 Accordingly, dismissal of this action, without prejudice, is appropriate here. 26 / / / 27 / / / 28 / / / 4 Case|2:20-cv-09593-ODW-SHK Document 9 Filed 03/09/22 Page5of5 Page ID #:73

1 IV. CONCLUSION 2 For the reasons discussed above, IT IS HEREBY ORDERED that the case 3 | is DISMISSED without prejudice. a 4 ae 5 | Dated: March 9, 2022 6 United States District hidge 8 | Presented by: ? Wepre 10 | HONORABLE SHASHI H. KEWALRAMANI M1 United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28