Case 5:21-cv-00570-SB-MAA Document 19 Filed 09/06/22 Page 1 of 8 Page ID #:538

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JUAN FRANCISCO MOLINA, Case No. 5:21-CV-00570-SB-MAA 12 Petitioner, ORDER DISMISSING PETITION

AND DISMISSING ACTION

13 v.

WITHOUT PREJUDICE

14 W.L. MONTGOMERY, 15 Respondent. 16 17 18 I. INTRODUCTION AND BACKGROUND 19 On February 22, 2021, Petitioner Juan Francisco Molina filed a pro se 20 petition for writ of habeas corpus. (“Petition,” ECF No. 1.) The Petition alleged 21 one basis for relief—that Petitioner’s sentence and the enhancements imposed 22 violated his Fifth, Eighth, Ninth, Thirteenth, and Fourteenth Amendment rights. 23 (Id. at 5-6.) Respondent W.L. Montgomery filed a Motion to Dismiss the Petition on 24 May 8, 2021, arguing that Petitioner’s basis for relief was not exhausted or, 25 alternatively, did not state a cognizable claim in federal court. (ECF No. 8.) After 26 Petitioner did not file an Opposition to Respondent’s Motion to Dismiss, the Court 27 issued an Order to Show Cause by August 13, 2021 why the Court should not 28 Case 5:21-cv-00570-SB-MAA Document 19 Filed 09/06/22 Page 2 of 8 Page ID #:539

1 recommend the action be dismissed for failure to file an Opposition, failure to 2 comply with Court orders, and failure to prosecute. (ECF No. 10.) 3 Petitioner responded on August 30, 2021 requesting a stay pursuant to Rhines 4 v. Weber, 544 U.S. 269 (2005) (“Rhines Stay”) in the action. (“Rhines Stay 5 Request,” ECF No. 11.) The Court granted Petitioner’s Rhines Stay Request and 6 denied Respondent’s Motion to Dismiss without prejudice on September 13, 2021. 7 (“Stay Order,” ECF No. 12.) Pursuant to the Stay Order, Petitioner was required to 8 file status reports every sixty (60) days updating the Court on his exhaustion efforts. 9 (Id. at 5.1) 10 On November 15, 2021, the Court received and filed Petitioner’s document 11 entitled “Request to Exhaust Two Additional Arguments Regarding the State 12 Case.” (ECF No. 13.) In this filing, Petitioner requested that the Court consider 13 two additional claims for habeas relief related to ineffective assistance of counsel, 14 which had not yet been exhausted in state court but for which Petitioner had started 15 the exhaustion process by filing a habeas petition with the California Court of 16 Appeal. (Id. at 1.) Petitioner also included a copy of the California Supreme 17 Court’s October 27, 2021 order denying Petitioner’s habeas petition relating to the 18 sole basis for relief maintained in the Petition. (Id. at 2.) 19 On November 30, 2021, the Court ordered Petitioner to file a First Amended 20 Petition by December 30, 2021. (ECF No. 14.) The Court construed the California 21 Supreme Court Order as a Rhines Stay status report and left the Rhines Stay in 22 place while Petitioner completed exhausting the two new claims in state court. (Id.) 23 Petitioner filed a First Amended Petition on December 29, 2021. (ECF No. 24 15.) Thereafter, Petitioner filed two status reports, on February 3, 2022 (ECF No. 25 26 27 1 Pinpoint citations in this Order refer to the page numbers appearing in the ECF- 28 generated headers of the cited documents.

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1 16) and on March 17, 2022 (ECF No. 17), indicating the claims in state court were 2 progressing. 3 Having not received a status report from Petitioner since March 17, 2022, the 4 Court issued an Order to Show Cause why the Petition should not be dismissed for 5 failure to prosecute on June 22, 2022. (ECF No. 18.) Petitioner’s response to this 6 Order to Show Cause was due no later than July 22, 2022. (Id.) The Court warned 7 Petitioner that “failure to respond to this Order may result in dismissal of the 8 Petition without prejudice for failure to prosecute and/or failure to comply 9 with a court order pursuant to Federal Rule of Civil Procedure 41(b).” (Id. 10 (emphasis in original).) 11 To date, Petitioner has not responded to the June 22, 2022, Order to Show 12 Cause or filed any status report since his March 17, 2022 status report. 13

14

II. ANALYSIS

15 A. Legal Standard 16 Central District of California Local Rule 7-12 provides in pertinent part: 17 The Court may decline to consider any memorandum or other 18 document not filed within the deadline set by order or local rule. The 19 failure to file any required document, or the failure to file it within the 20 deadline, may be deemed consent to the granting or denial of the 21 motion . . . . 22 C.D. Cal. L.R. 7-12; see also Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) 23 (affirming dismissal on the basis of an unopposed motion pursuant to local rule). 24 In addition, district courts may dismiss cases sua sponte for failure to 25 prosecute or for failure to comply with a court order under Federal Rule of Civil 26 Procedure 41(b). Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 27 689 (9th Cir. 2005); see also Link v. Wabash R.R. Co., 370 U.S. 626, 629–30 (1962) 28

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

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1 litigation and the Court’s need to manage its docket)2 weigh in favor of dismissal. 2 “Orderly and expeditious resolution of disputes is of great importance to the rule of 3 law.” Prods. Liab. Litig., 460 F.3d at 1227. Thus, “[t]he public’s interest in 4 expeditious resolution of litigation always favors dismissal.” Pagtalunan, 291 F.3d 5 at 642 (quoting Yourish, 191 F.3d at 990). In addition, district courts “have an 6 inherent power to control their dockets,” Prods. Liab. Litig., 460 F.3d at 1227 7 (quoting Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th 8 Cir. 1986)), and “are best suited to determine when delay in a particular case 9 interferes with docket management and the public interest.” Yourish, 191 F.3d at 10 990 (quoting Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984)). 11 To date, Petitioner has not filed a status report since March 17, 2022, in 12 violation of the Court’s Stay Order, which requires Petitioner to file a status report 13 every 60 days. (Stay Order, ECF No. 12.) Nor has Petitioner filed any response to 14 the Court’s June 22, 2022 Order to Show Cause. (ECF No. 18.) The Court 15 concludes that Petitioner’s failure to comply with Court orders and failure to 16 prosecute the lawsuit constitute unreasonable delay. See Thomas v. Maricopa Cty. 17 Jail, 265 Fed. App’x 606, 607 (9th Cir. 2008) (holding that district court did not 18 abuse its discretion by dismissing pro se prisoner lawsuit for failure to respond to a 19 court order for almost three months). Petitioner’s noncompliance and inaction also 20 interfere with the public’s interest in the expeditious resolution of this litigation and 21 hinder the Court’s ability to manage its docket. See Prods. Liab. Litig., 460 F.3d at 22 1227 (“[The Ninth Circuit] defer[s] to the district court’s judgment about when a 23 delay becomes unreasonable ‘because it is in the best position to determine what 24 period of delay can be endured before its docket becomes unmanageable.’” (quoting 25

26 2 Courts usually review the first factor in conjunction with the second factor. See 27 Prods. Liab. Litig., 460 F.3d at 1227; Moneymaker v. CoBen (In re Eisen), 31 F.3d 1447, 1452 (9th Cir. 1994) (The first two factors are usually reviewed together “to 28 determine if there is an unreasonable delay.”).

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1 Moneymaker v. CoBen (In re Eisen), 31 F.3d 1447, 1451 (9th Cir. 1994))). For 2 these reasons, the first and second factors favor dismissal. 3 4 2. Risk of Prejudice to Respondent 5 The third factor also supports dismissal without prejudice. The risk of 6 prejudice to a respondent is related to a petitioner’s reason for failure to prosecute an 7 action. See Pagtalunan, 291 F.3d at 642. Petitioner has offered no reason for failing 8 to file a status report or response to the Court’s June 22, 2022 Order to Show Cause. 9 The absence of any reason indicates sufficient prejudice to Respondent. See 10 Yourish, 191 F.3d at 991–92 (holding that a paltry excuse for default indicates 11 sufficient prejudice to the defendants); see also Laurino v. Syringa Gen. Hosp., 279 12 F.3d 750, 753 (9th Cir. 2002) (holding that “a presumption of prejudice arises from a 13 plaintiff’s unexplained failure to prosecute”). 14 15 3. Availability of Less Drastic Alternatives 16 The fourth factor also supports dismissal without prejudice. “Warning that 17 failure to obey a court order will result in dismissal can itself meet the 18 ‘consideration of alternatives’ requirement.” Prods. Liab. Litig., 460 F.3d at 1229 19 (citing, inter alia, Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1991) 20 (“Moreover, our decisions also suggest that a district court’s warning to a party 21 that his failure to obey the court’s order will result in dismissal can satisfy the 22 ‘consideration of alternatives’ requirement.”)). In its June 22, 2022 Order to 23 Show Cause, the Court warned Petitioner that the Petition might be dismissed if 24 he did not respond. (ECF No. 18.) Despite being afforded 30 days to comply, 25 Petitioner failed to respond and has not filed a status report since March 17, 2022. 26 /// 27 /// 28 ///

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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 for failure to comply with a court order and failure to prosecute 26 and (2) the Clerk is directed to enter judgment dismissing this action without 27 prejudice. 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 concludes 7 || that a certificate of appealability is not warranted; thus, a certificate of appealability 8 || is DENIED. 19 || Dated: September 6, 2022 11 eS 12 Stanley Blumenfeld, Jr. 3 United States District Judge 14 Presented by: ID | weer 16

MARIA A. AUDERO

17 | UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28