Case 2:21-cv-08666-GW-RAO Document 5 Filed 07/28/22 Page 1 of 5 Page ID #:39

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JOSE D. SUSANA, Case No. CV 21-08666 GW (RAO)

12 Petitioner,

ORDER DISMISSING PETITION

13 v. FOR WRIT OF HABEAS CORPUS

AND DENYING CERTIFICATE

14 DHS ICE, et al., OF APPEALABILITY 15 Respondents. 16 17 18 I. INTRODUCTION 19 On October 29, 2021, Petitioner Jose D. Susana (“Petitioner”), a detainee at 20 the Caroline Detention Facility in Bowling Green, Virginia, and who is proceeding 21 pro se,1 filed the instant Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 22 § 2241 (“Petition”). Dkt. No. 1. It appears that Petitioner is challenging his detention 23 on the grounds that he has been indefinitely detained without due process and thereby 24 subjected to unlawful conditions that are tantamount to torture. (Petition at 1-13.) 25 26 27 1 An individual named Pharaoh Momolu V.S. Sirleaf I represents, however, that he 28 is acting as “next friend” on behalf of Petitioner. (Petition at 1.) Case 2:21-cv-08666-GW-RAO Document 5 Filed 07/28/22 Page 2 of 5 Page ID #:40

1 On April 8, 2022, the Court issued an order raising concerns about whether the 2 Petition had been properly filed on Petitioner’s behalf by a “next friend.” (See Dkt. 3 No. 3 at 2.) The April 8, 2022 Order also stated that the Court was no longer able to 4 determine Petitioner’s current location of detention, if any, from a search of U.S. 5 Immigration and Customs Enforcement Detainee Locator. Id. The Court directed 6 Petitioner to respond to the Court’s order and to indicate his current location and 7 whether Petitioner himself is bringing this habeas action. Petitioner did not respond 8 to the Court’s order. 9 On June 6, 2022, the Court issued an order to show cause why this action 10 should not be dismissed for failure to prosecute and comply with court orders. (Dkt. 11 No. 4.) Petitioner did not respond to the order to show cause. 12 Given the foregoing and for the reasons below, the Court dismisses the Petition 13 without prejudice. 14 II. DISCUSSION 15 Federal Rule of Civil Procedure 41(b) grants district courts sua sponte 16 authority to dismiss actions for failure to prosecute or for failure to comply with court 17 orders. Link v. Wabash R.R. Co., 370 U.S. 626, 629-31, 82 S. Ct. 1386, 8 L. Ed. 2d 18 734 (1962); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-63 (9th Cir. 1992). “District 19 courts have the inherent power to control their dockets and, [i]n the exercise of that 20 power they may impose sanctions including, where appropriate, . . . dismissal of a 21 case.” Ferdik, 963 F.2d at 1260 (internal quotation marks omitted). 22 In determining whether to dismiss an action for failure to prosecute or for 23 failure to comply with court orders, a court must weigh five factors: 24 (1) the public’s interest in expeditious resolution of litigation; 25 (2) the court’s need to manage its docket; 26 (3) the risk of prejudice to defendants/respondents; 27 (4) the availability of less drastic alternatives; and 28 (5) the public policy favoring disposition of cases on their merits.

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1 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). 2 Here, the first factor (the public’s interest in expeditious resolution of 3 litigation) and second factor (the Court’s need to manage its docket) strongly favor 4 dismissal. The Court advised Petitioner that failure to respond to the Court’s order 5 to show cause would result in dismissal of the action. Petitioner’s “noncompliance 6 has caused [this] action to come to a complete halt, thereby allowing [him] to control 7 the pace of the docket rather than the Court.” Yourish v. Cal. Amplifier, 191 F.3d 8 983, 990 (9th Cir. 1999) (internal quotations marks omitted). His inaction frustrates 9 the public’s interest in the expeditious resolution of litigation and the Court’s need to 10 manage its docket. 11 The third factor (the risk of prejudice) requires a showing that the Petitioner’s 12 actions impaired Respondent’s ability to proceed with litigation or threatened to 13 interfere with the rightful decision of the case. See Pagtalunan, 291 F.3d at 642. 14 “Limited delays and the prejudice to a defendant from the pendency of a lawsuit are 15 realities of the system that have to be accepted, provided the prejudice is not 16 compounded by ‘unreasonable’ delays.” Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 17 1984). The Ninth Circuit has stated that “the failure to prosecute diligently is 18 sufficient by itself to justify a dismissal, even in the absence of a showing of actual 19 prejudice to the defendant from the failure.” Anderson v. Air W., Inc., 542 F.2d 522, 20 524 (9th Cir. 1976); see also In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994) 21 (quoting Anderson). Here, Petitioner’s failure to respond to the Court’s orders 22 indicates a loss of Petitioner’s interest in the matter. The Court finds that the third 23 factor weighs in favor of dismissal. 24 The fourth factor (the availability of less drastic alternatives) also supports 25 dismissal. The Court has provided Petitioner sufficient time to respond to the Court’s 26 orders, including the order to show cause. The Court cautioned Petitioner that a 27 failure to respond to the order to show cause would result in dismissal, see Dkt. No. 28 4, yet he has failed to respond and has not complied with the Court’s orders. The

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1 Court deems it imprudent to wait any longer for Petitioner to exhibit an interest in 2 prosecuting this matter with the requisite amount of diligence. Henderson v. Duncan, 3 779 F.2d 1421, 1424 (9th Cir. 1986) (a district court “need not exhaust every sanction 4 short of dismissal before . . . dismissing a case”). The Court also notes that it is 5 dismissing this action without prejudice, a significantly lesser sanction than dismissal 6 with prejudice. 7 The fifth factor (the public policy favoring disposition on the merits) weighs 8 against dismissal, as it almost inevitably will when an action is dismissed without 9 reaching the merits. Pagtalunan, 291 F.3d at 643. 10 In sum, four of the five factors favor dismissal. Accordingly, dismissal of this 11 action without prejudice is appropriate. 12 III. DENIAL OF CERTIFICATE OF APPEALABILITY 13 When the Court dismisses a petition on procedural grounds, it must issue a 14 certificate of appealability if the petitioner shows: (1) “that jurists of reason would 15 find it debatable whether the petition states a valid claim of the denial of a 16 constitutional right”; and (2) “that jurists of reason would find it debatable whether 17 the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 18 473, 478 (2000); see also 28 U.S.C. § 2253(c). 19 Here, the Court is dismissing the instant Petition without prejudice for failure 20 to prosecute and follow court orders. The Court finds that Petitioner cannot make 21 the requisite showing that jurists of reason would find it debatable whether the district 22 court was correct in its procedural ruling. 23 /// 24 /// 25 /// 26 /// 27 /// 28

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l IV. QRDER 2 Based on the foregoing, IT IS ORDERED THAT: 3 1. The Petition is DISMISSED without prejudice; and 4 2. A Certificate of Appealability is DENIED. 6 || DATED: July 28, 2022 Beas KK, hi ’ GEORGEH. WU 8 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28