Case 5:22-cv-00509-PA-SHK Document 12 Filed 08/03/22 Page 1 of 5 Page ID #:59

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7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA

10 11 D.J. ROBERT CARPENTER, Case No. 5:22-cv-00509-PA-SHK 12 Plaintiff,

ORDER DISMISSING COMPLAINT

13 v. 14 RIVERSIDE SHERIFF’S OFFICE, 15 Defendant.

16 17 I. BACKGROUND 18 On March 7, 2022, Plaintiff D.J. Robert Carpenter (“Plaintiff”), an inmate 19 residing at the John J. Benoit Detention Center in Indio, California, and proceeding 20 pro se, constructively1 filed a civil rights complaint (“Complaint” or “Compl.”) 21 seeking relief under 42 U.S.C. § 1983 (“§ 1983”) in the United States District 22 Court of the Central District of California. Electronic Case Filing Number (“ECF 23 No.”) 1, Compl. Plaintiff filed the case without prepaying his filing fees or filing 24 an application to proceed in forma pauperis (“IFP”), and the Court issued an Order 25 to Show Cause (“OSC”) requiring Plaintiff to either: (1) pay the full filing fee; (2) 26 apply to proceed IFP; or (3) show cause in writing why he is unable to perform 27 1 Under the “mailbox rule,” when a pro se prisoner gives prison authorities a pleading to mail to 28 court, the court deems the pleading constructively “filed” on the date it is signed. Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009). Case 5:22-cv-00509-PA-SHK Document 12 Filed 08/03/22 Page 2 of 5 Page ID #:60

1 option one or two by April 20, 2022. See ECF No. 4, OSC. On April 14, 2022, 2 the Court received Plaintiff’s request for an extension of time (“IFP Ext. Req.”) to 3 file his IFP application, ECF No. 5, IFP Ext. Req., which the Court granted in its 4 Minute Order (“MO”), issued on April 18, 2022. ECF No. 6, IFP Ext. Req. MO. 5 On April 20, 2022, the Court issued an Order Dismissing the Complaint with 6 Leave to Amend (“ODLA”). ECF No. 7, ODLA. Plaintiff was ordered to file a 7 First Amended Complaint (“FAC”) within twenty-one days of the service date of 8 the ODLA if he wished to continue to prosecute the action. Id. at 13. Plaintiff was 9 cautioned that if Plaintiff failed to timely file a FAC, “the Court may recommend 10 that this action be dismissed with or without prejudice for failure to state a 11 claim, failure to prosecute, and/or failure to obey Court orders under Federal 12 Rule of Civil Procedure 41(b).” Id. at 14 (emphasis in original). 13 Plaintiff filed his IFP application (“IFP Req.”) on May 2, 2022, ECF No. 8, 14 which the Court subsequently granted in an order issued on May 11, 2022. ECF 15 No. 9, IFP Req. Order. 16 On May 23, 2022, the Court received Plaintiff’s letter in which he sought an 17 extension of sixty days to file his FAC (“FAC Extension Request” or “FAC Ext. 18 Req.”). ECF No. 10, FAC Ext. Req. In it, Plaintiff stated he faced mail delays and 19 limited access to the jail law library. Id. at 3-4. In an MO issued on May 26, 2022, 20 the Court granted Plaintiff’s FAC Extension Request and ordered him to file his 21 FAC by July 9, 2022. ECF No. 11, FAC Ext. Req. MO. As of the date of this 22 Order, Plaintiff has not filed a FAC or otherwise contacted the Court. 23 II. DISCUSSION 24 District courts have sua sponte authority to dismiss actions for failure to 25 prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. 26 Wabash R.R. Co., 370 U.S. 626, 629-30 (1962); Hells Canyon Pres. Council v. 27 U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating courts may dismiss an 28 action under Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s 2 Case 5:22-cv-00509-PA-SHK Document 12 Filed 08/03/22 Page 3 of 5 Page ID #:61

1 failure to prosecute or comply with the Federal Rules of Civil Procedure or the 2 court’s orders); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (ordering 3 dismissal for failure to comply with court orders). 4 In deciding whether to dismiss for failure to prosecute or comply with court 5 orders, a district court must consider five factors: “(1) the public’s interest in 6 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) 7 the risk of prejudice to the defendants; (4) the public policy favoring disposition of 8 cases on their merits; and (5) the availability of less drastic sanctions.” Henderson 9 v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); see also Pagtalunan v. Galaza, 10 291 F.3d 639, 642 (9th Cir. 2002) (setting out similar five factors as in Henderson). 11 “Dismissal is appropriate ‘where at least four factors support dismissal, or where at 12 least three factors ‘strongly’ support dismissal.’” Neal v. Reslan, No. CV 19- 13 09291 PA (ASx), 2020 WL 754366, at *1 (C.D. Cal. Jan. 16, 2020) (quoting 14 Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (internal 15 citations omitted) (citing Ferdik, 963 F.2d at 1263)). In a case involving sua 16 sponte dismissal, however, the fifth Henderson factor regarding the availability of 17 less drastic sanctions warrants special focus. Hernandez, 138 F.3d at 399. 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 Even after the Court’s warnings and granting of a 60-day extension of time, 21 Plaintiff has failed to file a FAC, respond to Court orders, or otherwise participate 22 in this litigation. This failure to prosecute and follow Court orders hinders the 23 Court’s ability to move this case toward disposition and suggests Plaintiff does not 24 intend to litigate this action diligently. See id. 25 The third factor—prejudice to Defendant—also weighs in favor of dismissal. 26 A rebuttable presumption of prejudice to a defendant arises when plaintiffs 27 unreasonably delay prosecution of an action. See In re Eisen, 31 F.3d 1447, 28 1452-53 (9th Cir. 1994) (citations omitted). Here, Plaintiff has not offered any 3 Case 5:22-cv-00509-PA-SHK Document 12 Filed 08/03/22 Page 4 of 5 Page ID #:62

1 excuse for his failure to comply with the Court’s order and respond in a timely 2 manner and this “prejudice” element, thus, favors dismissal. 3 The fourth factor—public policy in favor of deciding cases on the merits— 4 ordinarily weighs against dismissal. However, it is Plaintiff’s responsibility to 5 move litigation towards disposition at a reasonable pace and to avoid dilatory and 6 evasive tactics. See Morris v. Morgan Stanley, 942 F.2d 648, 652 (9th Cir. 1991). 7 Plaintiff has not met this responsibility despite having been: (1) instructed on his 8 responsibilities; (2) granted sufficient time in which to discharge them; and (3) 9 repeatedly warned of the consequences of failure to do so. Under these 10 circumstances, though this policy favors Plaintiff, it does not outweigh Plaintiff’s 11 failure to obey Court orders or to file responsive documents within the time 12 granted. 13 The fifth factor—availability of less drastic sanctions—also weighs in favor 14 of dismissal. The Court cannot move the case toward disposition without 15 Plaintiff’s compliance with Court orders or participation in this litigation. Despite 16 attempts by the Court to obtain a response, Plaintiff has shown he is either 17 unwilling or unable to comply with Court orders by failing to timely file 18 responsive documents or otherwise cooperate in prosecuting this action. The Court 19 is not aware of any lesser sanction that is available in this case. See Henderson, 20 779 F.2d at 1424 (“The district court need not exhaust every sanction short of 21 dismissal before finally dismissing a case but must explore possible and 22 meaningful alternatives.”) (citation omitted); Roman v. Smith, No. 2:18-07909 PA 23 (ADS), 2019 WL 8013120, at *1 (C.D. Cal. Nov. 18, 2019). 24 Accordingly, because it appears that Plaintiff has abandoned this litigation, 25 and because Plaintiff has defied Court orders, the Court DISMISSES this case, 26 without prejudice. 27 / / / 28 / / / 4 Casq 5:22-cv-00509-PA-SHK Document 12 Filed 08/03/22 Page5of5 Page ID #:63

1 HI. ORDER 2 Based on the foregoing, IT IS HEREBY ORDERED THAT Judgment be 3 | entered DISMISSING this case without prejudice. 4 | Cte 5 | DATED: August 3, 2022 6 Canad States Ded udge 8 | Presented by: ? KA ee 10 | HON. SHASHITH. KEWALRAMANI. 1 United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28