Case 2:22-cv-00726-PA-KES Document 5 Filed 03/21/22 Page 1 of 5 Page ID #:81

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 JUAN CARLOS MARIN, Case No. 2:22-cv-00726-PA-KES

12 Plaintiff,

ORDER DISMISSING ACTION FOR

13 v. FAILURE TO PROSECUTE

14 UNITED STATES CENTRAL

15 DISTRICT COURT,

16 Defendant.

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19 I.

20 BACKGROUND 21 On January 31, 2022, the Court received by mail a filing purporting to be a 22 civil rights Complaint filed by Ciro Sanchez as “power of attorney” for Plaintiff 23 Juan Carlos Marin (“Plaintiff”), a California inmate. (Dkt. 1.) On February 2, 24 2022, the Clerk’s office gave a “Notice of Deficiency” advising that Plaintiff is 25 housed at the California Men’s Colony (see Dkt. 1 at 21), an institution that 26

27 1 Page citations are to the pagination imposed by the Court’s electronic filing system. 28 1 Case 2:22-cv-00726-PA-KES Document 5 Filed 03/21/22 Page 2 of 5 Page ID #:82

1 participates in the Court’s pilot project for e-filing inmate complaints, per the 2 Court’s General Order 18-02. (Dkt. 2.) The notice advised Plaintiff to re-submit 3 the Complaint electronically, which he failed to do. 4 On February 23, 2022, the Court issued an Order to Show Cause (“OSC”) 5 why the Complaint should not be dismissed for failing to comply with the e-filing 6 requirements of General Order 18-02. The Court advised Plaintiff that he may 7 discharge the OSC by refiling the Complaint electronically on or before March 9, 8 2022. The Court also advised Plaintiff that “[i]f he fails to do so, then the 9 Complaint may be promptly dismissed without prejudice.” (Dkt. 4.) 10 As of the date of this Order, Plaintiff has failed to refile his Complaint 11 electronically or take any further action in this matter. 12 II. 13 DISCUSSION 14 A. Legal Standard. 15 A district court may dismiss an action for failure to prosecute, failure to 16 follow court orders, or failure to comply with the federal or local rules. See Fed. 17 R. Civ. P. 41(b); Link v. Wabash R. Co., 370 U.S. 626, 629-30 (1962); Ghazali v. 18 Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). 19 In determining whether to dismiss a case for failure to prosecute or failure to 20 comply with court orders, the Ninth Circuit has instructed district courts to consider 21 the following five factors: (1) the public’s interest in expeditious resolution of 22 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 23 defendants; (4) the availability of less drastic sanctions; and (5) the public policy 24 favoring disposition of cases on their merits. In re Phenylpropanolamine (PPA) 25 Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006). The test is not 26 “mechanical,” but provides a “non-exhaustive list of things” to “think about.” 27 Valley Eng’rs v. Elec. Eng’g Co., 158 F.3d 1051, 1057 (9th Cir. 1998). 28 2 Case 2:22-cv-00726-PA-KES Document 5 Filed 03/21/22 Page 3 of 5 Page ID #:83

1 B. Analysis. 2 The first factor – the public’s interest in expeditious resolution of litigation – 3 “always favors dismissal.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 4 2002). This factor thus weighs in favor of dismissal. 5 The second factor similarly weighs in favor of dismissal. Courts have “the 6 power to manage their dockets without being subject to the endless vexatious 7 noncompliance of litigants.” See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 8 1992). The second factor thus focuses on whether a particular case has “consumed 9 . . . time that could have been devoted to other cases on the [court’s] docket.” See 10 Pagtalunan, 291 F.3d at 642; Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 11 (9th Cir. 2004) (“[R]esources continue to be consumed by a case sitting idly on the 12 court’s docket.”). The Court’s need to manage its docket favors dismissal here 13 because Plaintiff’s “noncompliance with the OSC has caused [this] action to come 14 to a complete halt, thereby allowing [him] to control the pace of the docket rather 15 than the Court.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) 16 (internal quotations marks omitted). 17 The third factor also favors dismissal. A rebuttable presumption of prejudice 18 to the defendant arises when a plaintiff unreasonably delays prosecution of an 19 action, In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994), and unnecessary delay 20 “inherently increases the risk that witnesses’ memories will fade and evidence will 21 become stale,” Pagtalunan, 291 F.3d at 643. Nothing suggests that such a 22 presumption is unwarranted in this case. 23 The fourth factor favors dismissal. A “district court need not exhaust every 24 sanction short of dismissal before finally dismissing a case, but must explore 25 possible and meaningful alternatives.” Henderson v. Duncan, 779 F.2d 1421, 1424 26 (9th Cir. 1986). Less drastic alternatives to dismissal include warning a party that 27 dismissal could result from failure to obey a court order. See Malone v. U.S. Postal 28 Serv., 833 F.2d 128, 132, n.1 (9th Cir. 1987); Ferdik, 963 F.2d at 1262 (“[A] 3 Case 2:22-cv-00726-PA-KES Document 5 Filed 03/21/22 Page 4 of 5 Page ID #:84

1 district court's warning to a party that his [or her] failure to obey the court's order 2 will result in dismissal can satisfy the ‘consideration of alternatives’ requirement.”) 3 (citations omitted).The Court has considered and implemented less drastic 4 alternatives prior to dismissal. The OSC explicitly ordered Plaintiff to refile his 5 Compliant electronically and that his failure to do so would result in prompt 6 dismissal. Any less drastic alternatives to dismissal would be inadequate to 7 remedy Plaintiff’s failure to obey Court’s orders and prosecute his case. 8 The fifth factor ordinarily weighs against dismissal. See Dreith v. Nu 9 Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011). “At the same time, a case that is 10 stalled or unreasonably delayed by a party's failure to comply with deadlines . . . 11 cannot move forward towards a resolution on the merits.” In re 12 Phenylpropanolamine, 460 F.3d at 1228. Accordingly, “this factor ‘lends little 13 support’ to a party [such as Plaintiff,] whose responsibility it is to move a case 14 toward disposition on the merits but whose conduct impedes progress in that 15 direction.” Id.; see also Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th 16 Cir. 1991) (“Although there is indeed a policy favoring disposition on the merits, it 17 is the responsibility of the moving party to move towards that disposition at a 18 reasonable pace, and to refrain from dilatory and evasive tactics.”) 19 Given that the enumerated factors largely support dismissal, this action will 20 be dismissed pursuant to Rule 41(b) and Local Rule 41-1. The Court has discretion 21 to dismiss an action under Rule 41(b) with or without prejudice. See Fed. R. Civ. 22 P. 41(b) (“[u]nless the dismissal order states otherwise,” a dismissal pursuant to 23 Federal Rule of Civil Procedure 41(b) operates as an adjudication on the merits 24 absent exceptions that are not relevant here); Local Rule 41-2 (“[u]nless the Court 25 provides otherwise, any dismissal pursuant to [Local Rule] 41-1 shall be without 26 prejudice”); Al-Torki v. Kaempen, 78 F.3d 1381, 1385 (9th Cir. 1996). 27 Considering all of the circumstances, the action will be dismissed in its entirety 28 without prejudice. 4 Case 2:22-cv-00726-PA-KES Document5 Filed 03/21/22 Page5bof5 Page ID#:85

1 IV. 2 CONCLUSION 3 IT IS THEREFORE ORDERED that Judgment shall be entered dismissing 4 | this action without prejudice for failure to prosecute. 5 Cte — 6 | DATED: March 21, 2022 Wiz 7 PERCY AND ERSON

UNITED STATES DISTRICT JUDGE

9 | Presented by: 0) Foun Sest Il | KAREN E. SCOTT 12 | UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28