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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RALPH J. LARA, Case No. 2:21-cv-08609-JLS-MAA 12 Petitioner, ORDER DISMISSING PETITION

AND DISMISSING ACTION

13 v. WITHOUT PREJUDICE 14 LOS ANGELES COURT, 15 Respondent. 16 17 18 I. INTRODUCTION AND BACKGROUND 19 On October 29, 2021, the Court received and filed Petitioner Ralph J. Lara’s 20 (“Petitioner”) pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 21 (“Section 2254”) (“Petition”). (Pet., ECF No. 1.) Although Petitioner filed the 22 required Form CV-69, Petitioner does not state which, if any, grounds for federal 23 habeas relief he intends to raise in the Petition. (See Pet. 5–7.)1 24 On November 22, 2021, the Court issued an Order identifying certain 25 procedural defects with the Petition: (1) Petitioner did not name the proper 26 Respondent for a Section 2254 proceeding; and (2) the legal basis for the Petition 27 1 Pinpoint citations in this Order refer to the page numbers appearing in the ECF- 28 generated headers of the cited documents. Case 2:21-cv-08609-JLS-MAA Document 9 Filed 04/14/22 Page 2 of 7 Page ID #:55

1 was unclear because Petitioner did not state which, if any, grounds for federal 2 habeas relief he intended to raise in the Petition (“November 22 Order”). (Nov. 22, 3 2021 Order, ECF No. 6.) The Court ordered Petitioner to file an amended petition 4 or written response addressing these defects by December 22, 2021. (Id. at 1, 2–3.) 5 The Court cautioned Petitioner that “failure to respond to this Order by 6 December 22, 2021 will result in a recommendation that the Petition be 7 summarily dismissed for failure to prosecute and failure to comply with a 8 court order pursuant to pursuant to Federal Rule of Civil Procedure 41(b).” 9 (Id. at 2–3 (emphasis in original).) 10 On January 21, 2022, in the absence of any correspondence from Petitioner, 11 the Court issued an Order to Show Cause why the Petition should not be dismissed 12 for failure to prosecute and to comply with Court orders (“January 21 OSC”). 13 (January 21, 2022 OSC, ECF No. 7.) Petitioner’s response to the January 21 OSC 14 was due no later than February 22, 2022. (Id. at 1.) The Court cautioned Petitioner 15 that “failure to respond to this Order may result in dismissal of the Petition 16 without prejudice for failure to prosecute and/or failure to comply with a court 17 order pursuant to Federal Rule of Civil Procedure 41(b).” (Id. (emphasis in 18 original).) 19 To date, Petitioner has not responded to the January 21 OSC. 20 21 II. ANALYSIS 22 A. Legal Standard 23 District courts may dismiss cases sua sponte for failure to prosecute or for 24 failure to comply with a court order under Federal Rule of Civil Procedure 41(b). 25 Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005); 26 see also Link v. Wabash R.R. Co., 370 U.S. 626, 629–30 (1962) (holding that federal 27 district courts have “inherent power” to dismiss cases sua sponte for lack of 28 prosecution). Unless the Court states otherwise, a dismissal under Rule 41(b)—

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1 other than for lack of jurisdiction, improper venue, or failure to join a party— 2 operates as an adjudication on the merits. See Fed. R. Civ. P. 41(b). Dismissal, 3 however, “is a harsh penalty and is to be imposed only in extreme circumstances.” 4 Allen v. Bayer Corp. (In re: Phenylpropanolamine (PPA) Prods. Liab. Litig.), 460 5 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone v. U.S. Postal Serv., 833 F.2d 128, 6 130 (9th Cir. 1987)). “A Rule 41(b) dismissal must be supported by a showing of 7 unreasonable delay.” Omstead v. Dell, 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting 8 Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986) (quotation marks 9 omitted)). 10 Before dismissing an action for failure to prosecute or failure to comply with a 11 court order, a district court must weigh five factors: “(1) the public’s interest in 12 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 13 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases 14 of their merits; and (5) the availability of less drastic sanctions.” Ghazali, 46 F.3d at 15 53–54 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)) (failure 16 to follow a local rule); see also Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 17 2002) (failure to prosecute or failure to comply with a court order). The Ninth 18 Circuit will “affirm a dismissal where at least four factors support dismissal, or 19 where at least three factors strongly support dismissal.” Dreith v. Nu Image, Inc., 20 648 F.3d 779, 788 (9th Cir. 2011) (quoting Yourish v. Cal. Amplifier, 191 F.3d 983, 21 990 (9th Cir. 1999)). 22 23 B. The Factors Support Dismissal. 24 1. The Public’s Interest in Expeditious Resolution and the Court’s 25 Need to Manage its Docket 26 Courts usually review the first factor (the public’s interest in expeditious 27 resolution of litigation) in conjunction with the second factor (the Court’s need to 28 manage its docket). See Prods. Liab. Litig., 460 F.3d at 1227; Moneymaker v.

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1 CoBen (In re Eisen), 31 F.3d 1447, 1452 (9th Cir. 1994) (The first two factors are 2 usually reviewed together “to determine if there is an unreasonable delay.”). Here, 3 the first and second factors weigh in favor of dismissal. “Orderly and expeditious 4 resolution of disputes is of great importance to the rule of law.” Prods. Liab. Litig., 5 460 F.3d at 1227. Thus, “[t]he public’s interest in expeditious resolution of 6 litigation always favors dismissal.” Pagtalunan, 291 F.3d at 642 (quoting Yourish, 7 191 F.3d at 990). In addition, district courts “have an inherent power to control their 8 dockets,” Prods. Liab. Litig., 460 F.3d at 1227 (quoting Thompson v. Hous. Auth. of 9 City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986)), and “are best suited to 10 determine when delay in a particular case interferes with docket management and 11 the public interest.” Yourish, 191 F.3d at 990 (quoting Ash v. Cvetkov, 739 F.2d 12 493, 496 (9th Cir. 1984)). 13 To date, Petitioner has not filed a response to the Court’s November 22 Order 14 or its January 21 OSC. Indeed, Petitioner has not communicated with the Court 15 since the Court received and filed the Petition on October 29, 2021. The Court 16 concludes that Petitioner’s failure to comply with Court orders and failure to 17 prosecute the lawsuit constitute unreasonable delay. See Thomas v. Maricopa Cty. 18 Jail, 265 Fed. App’x 606, 607 (9th Cir. 2008) (holding that district court did not 19 abuse its discretion by dismissing pro se prisoner lawsuit for failure to respond to a 20 court order for almost three months). Petitioner’s noncompliance and inaction also 21 interfere with the public’s interest in the expeditious resolution of this litigation and 22 hinder the Court’s ability to manage its docket. See Prods. Liab. Litig., 460 F.3d at 23 1227 (“[The Ninth Circuit] defer[s] to the district court’s judgment about when a 24 delay becomes unreasonable ‘because it is in the best position to determine what 25 period of delay can be endured before its docket becomes unmanageable.’” (quoting 26 Moneymaker, 31 F.3d at 1451)). For these reasons, the first and second factors favor 27 dismissal. 28 ///

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1 2. Risk of Prejudice to Respondent 2 The third factor also supports dismissal without prejudice. The risk of 3 prejudice to a respondent is related to a petitioner’s reason for failure to prosecute an 4 action. See Pagtalunan, 291 F.3d at 642. Here, Petitioner has offered no reason for 5 failing to file a response to the Court’s November 22 Order or its January 21 OSC. 6 The absence of any reason indicates sufficient prejudice to Respondent. See 7 Yourish, 191 F.3d at 991–92 (holding that a paltry excuse for default indicates 8 sufficient prejudice to the defendants); see also Laurino v. Syringa Gen. Hosp., 279 9 F.3d 750, 753 (9th Cir. 2002) (holding that “a presumption of prejudice arises from a 10 plaintiff’s unexplained failure to prosecute”). 11 12 3. Availability of Less Drastic Alternatives 13 The fourth factor also supports dismissal without prejudice. “The district 14 court need not exhaust every sanction short of dismissal before finally dismissing 15 a case, but must explore possible and meaningful alternatives.” Henderson v. 16 Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986). “Warning that failure to obey a 17 court order will result in dismissal can itself meet the ‘consideration of 18 alternatives’ requirement.” Prods. Liab. Litig., 460 F.3d at 1229 (citing, inter 19 alia, Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1991) (“Moreover, our 20 decisions also suggest that a district court’s warning to a party that his failure to 21 obey the court’s order will result in dismissal can satisfy the ‘consideration of 22 alternatives’ requirement.”)). Here, the Court’s November 22 Order cautioned 23 Petitioner that his failure to respond would result in a recommendation of 24 dismissal. (Nov. 22, 2021 Order at 2–3.) However, rather than dismissing the 25 Petition when Petitioner failed to respond to the November 22 Order, the Court 26 issued the January 21 OSC, warning Petitioner that his failure to respond might 27 result in dismissal of the Petition. (Jan. 21, 2022 OSC at 1.) Despite being 28 afforded 30 days to comply, Petitioner failed to respond to the January 21 OSC.

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1 4. Public Policy Favoring Disposition of Cases on Their Merits 2 The fifth factor weighs against dismissal. “We have often said that the 3 public policy favoring disposition of cases on their merits strongly counsels 4 against dismissal.” Prods. Liab. Litig., 460 F.3d at 1228 (citing Hernandez, 138 5 F.3d at 399). On the other hand, “this factor ‘lends little support’ to a party whose 6 responsibility it is to move a case toward disposition on the merits but whose 7 conduct impedes progress in that direction.” Id. (citations omitted). Thus, this 8 factor alone does not preclude dismissal. 9 10 C. Dismissal of this Action is Appropriate. 11 As discussed above, Petitioner’s failure to comply with Court orders and 12 failure to prosecute this action constitute unreasonable delay. In addition, four of the 13 dismissal factors weigh in favor of dismissal, whereas only one factor weighs 14 against dismissal. “While the public policy favoring disposition of cases on their 15 merits weighs against [dismissal], that single factor is not enough to preclude 16 imposition of this sanction when the other four factors weigh in its favor.” Rio 17 Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1022 (9th Cir. 2002). 18 The Court concludes that dismissal of this action for failure to comply with 19 Court orders and failure to prosecute is warranted. However, consistent with Rule 20 41(b) and this Court’s exercise of its discretion, the dismissal should be without 21 prejudice. 22 23 III. CONCLUSION 24 Accordingly, IT IS HEREBY ORDERED that (1) the Petition is DISMISSED 25 without prejudice failure to comply with a court order and failure to prosecute and 26 (2) the Clerk is directed to enter judgment dismissing this action without prejudice. 27 /// 28 ///

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1 || IV. CERTIFICATE OF APPEALABILITY 2 Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the 3 || United States District Courts, the Court “must issue or deny a certificate of 4 || appealability when it enters a final order adverse to the applicant.” The Court has 5 || considered whether a certificate of appealability is warranted. See 28 U.S.C. 6 |} § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). The Court 7 || concludes that a certificate of appealability is not warranted; thus, a certificate of 8 || appealability is DENIED. 10 | DATED: April 14, 2022 i maf (. Sth 12 JOSEPHINE IL. STATON 13 UNITED STATES DISTRICT JUDGE 14 15 || Presented by: 16

18 | MARIA ‘X. AUDERO □ 19 | UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28