Case 2:22-cv-02688-SVW-MAA Document 5 Filed 09/30/22 Page 1 of 7 Page ID #:145

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2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RUDY LATSCHA, Case No. 2:22-CV-02688-SVW-MAA

12 Petitioner, ORDER OF DISMISSAL 13 v. 14 KEN CLARK, 15 Respondent.

16 17 I. SUMMARY OF PROCEEDINGS 18 On April 19, 2022, Petitioner Rudy Latscha (“Petitioner”), a California state 19 inmate proceeding pro se, filed a petition for writ of habeas corpus. (“Petition,” 20 ECF No. 1.) The Petition alleged seven grounds for federal habeas relief. (Id. at 5– 21 7.1) However, Petitioner did not pay the $5 filing fee required for Section 2254 22 actions, nor did he submit a request for leave to proceed in forma pauperis. (See 23 generally Pet.) 24 On May 9, 2022, the Court issued an Order directing Petitioner to pay the 25 required $5 filing fee or to submit a completed request for leave to proceed in forma 26 pauperis by no later than June 9, 2022 (“Order”). (Order, ECF No. 3.) On July 25, 27 1 Pinpoint citations in this Order refer to the page numbers appearing in the ECF- 28 generated headers of the cited documents. Case 2:22-cv-02688-SVW-MAA Document 5 Filed 09/30/22 Page 2 of 7 Page ID #:146

1 2022, in the absence of a response from Petitioner to the May 9 Order, the Court 2 issued an Order to Show Cause (“OSC”), ordering Petitioner to show cause by 3 August 24, 2022 why the Court should not recommend that the action be dismissed 4 for want of prosecution. (OSC, ECF No. 4.) The OSC stated that if Petitioner filed 5 either the $5 filing fee or a completed request for leave to proceed in forma 6 pauperis on or before that date, the OSC would be discharged. The OSC cautioned 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 failed to file either the $5 filing fee or a completed 12 request for leave to proceed in forma pauperis and has failed to respond to either 13 the Order or OSC. Indeed, Petitioner has not communicated with the Court since 14 filing the Petition on April 19, 2022. 15 16 II. LEGAL STANDARD 17 District courts may dismiss cases sua sponte for failure to prosecute or for 18 failure to comply with a court order under Federal Rule of Civil Procedure 41(b). 19 Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005); 20 see also Link v. Wabash R.R. Co., 370 U.S. 626, 629–30 (1962) (holding that the 21 court has “inherent power” to dismiss cases sua sponte for lack of prosecution). 22 Unless the Court states otherwise, a dismissal under Rule 41(b) operates as an 23 adjudication on the merits. Fed. R. Civ. P. 41(b). “Dismissal is a harsh penalty and 24 is to be imposed only in extreme circumstances.” In re: Phenylpropanolamine 25 (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone v. 26 USPS, 833 F.2d 128, 130 (9th Cir. 1987)). 27 “A Rule 41(b) dismissal ‘must be supported by a showing of unreasonable 28 delay.’” Omstead v. Dell, 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson

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1 v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). In addition, the court must weigh 2 the following factors in determining whether a Rule 41(b) dismissal is warranted: 3 “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 4 to manage its docket; (3) the risk of prejudice to the defendants/respondents; (4) the 5 availability of less drastic alternatives; and (5) the public policy favoring disposition 6 of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). 7 The Ninth Circuit will “affirm a dismissal where at least four factors support 8 dismissal, or where at least three factors strongly support dismissal.” Dreith v. Nu 9 Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011) (quoting Yourish v. Cal. Amplifier, 10 191 F.3d 983, 990 (9th Cir. 1999)). Finally, “in order to warrant a sanction of 11 dismissal, the party’s violations of the court’s orders must be due to wilfulness or 12 bad faith.” Id. 13 14 III. ANALYSIS 15 A. The Public’s Interest in Expeditious Resolution and the Court’s 16 Need to Manage Its Docket 17 The first and second factors (the public’s interest in expeditious resolution of 18 litigation and the Court’s need to manage its docket)2 weigh in favor of dismissal. 19 “Orderly and expeditious resolution of disputes is of great importance to the rule of 20 law.” In re: Phenylpropanolamine, 460 F.3d at 1227. “The public’s interest in 21 expeditious resolution of litigation always favors dismissal.” Pagtalunan, 291 F.3d 22 at 642 (quoting Yourish, 191 F.3d at 990). In addition, district courts “have an 23 inherent power to control their dockets,” In re: Phenylpropanolamine, 460 F.3d at 24 1227 (quoting Thompson v. Hous. Auth. of Los Angeles, 782 F.2d 829, 831 (9th Cir. 25 1986)), and “are best suited to determine when delay in a particular case interferes 26 with docket management and the public interest.” Yourish, 191 F.3d at 990 27 2 The first two factors are usually reviewed together “to determine if there is an 28 unreasonable delay.” In re Eisen, 31 F.3d 1447, 1452 (9th Cir. 1994).

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1 (quoting Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984)). 2 Petitioner has failed to either pay the $5 filing fee or file a completed request 3 for leave to proceed in forma pauperis, has not filed any response to the Order and 4 OSC, and has not otherwise participated in this lawsuit since April 19, 2022. The 5 Court concludes that Petitioner’s inaction and lack of communication with the 6 Court constitute willful unreasonable delay. See, e.g., Thomas v. Maricopa Cnty. 7 Jail, 265 F. App’x. 606, 607 (9th Cir. 2008) (holding that district court did not 8 abuse its discretion by dismissing pro se prisoner lawsuit for failure to respond to a 9 court order for almost three months). Petitioner’s noncompliance also interferes 10 with the public’s interest in the expeditious resolution of this litigation and hinders 11 the Court’s ability to manage its docket. See In re: Phenylpropanolamine, 460 F.3d 12 at 1227 (“[The Ninth Circuit] defer[s] to the district court’s judgment about when a 13 delay becomes unreasonable ‘because it is in the best position to determine what 14 period of delay can be endured before its docket becomes unmanageable.”) (quoting 15 In re Eisen, 31 F.3d at 1451)). The first and second factors favor dismissal. 16 17 B. Risk of Prejudice to Defendants 18 The third factor (risk of prejudice to the defendants) also weighs in favor of 19 dismissal. “A defendant suffers prejudice if the plaintiff’s actions impair the 20 defendant’s ability to go to trial or threaten to interfere with the rightful decision of 21 the case.” In re: Phenylpropanolamine, 460 F.3d at 1227 (quoting Adriana Int’l 22 Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990)). “The law also presumes 23 prejudice from unreasonable delay.” Id. The risk of prejudice to a defendant is 24 related to a plaintiff’s reason for failure to prosecute an action. Pagtalunan, 291 25 F.3d at 642. “Whether prejudice is sufficient to support an order of dismissal is in 26 part judged with reference to the strength of the plaintiff’s excuse for the default.” 27 Malone, 833 F.2d at 131. 28

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1 Here, Petitioner has failed to either pay the $5 filing fee or file a completed 2 request for leave to proceed in forma pauperis, has failed to otherwise comply with 3 the Order, and has failed to respond to the OSC. Indeed, Petitioner has not 4 communicated with the Court since April 19, 2022. As “a presumption of prejudice 5 arises from the plaintiff’s unexplained failure to prosecute,” the third factor favors 6 dismissal. See Hernandez v. City of El Monte, 138 F.3d 393, 400 (9th Cir. 1998). 7 8 C. Availability of Less Drastic Alternatives 9 The fourth factor (the availability of less drastic alternatives) also supports 10 dismissal. “The district court need not exhaust every sanction short of dismissal 11 before finally dismissing a case, but must explore possible and meaningful 12 alternatives.” Henderson, 779 F.2d at 1424. 13 The Court considered and implemented less drastic alternatives prior to 14 dismissal. The Court explicitly warned Petitioner that failure to file either the $5 15 filing fee or a completed request for leave to proceed in forma pauperis would 16 result in a recommendation that the action be dismissed for failure to prosecute 17 and/or failure to comply with Court orders pursuant to Federal Rule of Civil 18 Procedure 41(b). (OSC.) See In re: Phenylpropanolamine, 460 F.3d at 1229 19 (“Warning that failure to obey a court order will result in dismissal can itself meet 20 the ‘consideration of alternatives’ requirement.”). The Court also extended 21 Petitioner’s deadline to comply with the Order from June 9, 2022 to August 24, 22 2022. (OSC.) See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (holding 23 that the district court’s allowance of an additional thirty days for plaintiff to file an 24 amended complaint was an attempt at a less drastic sanction). The fourth factor 25 weighs in favor of dismissal. 26 27 28

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1 D. Public Policy Favoring Disposition on the Merits 2 As to the fifth factor, “[p]ublic policy favors disposition of cases on the 3 merits.” Pagtalunan, 291 F.3d at 643. However, “a case that is stalled or 4 unreasonably delayed by a party’s failure to comply with deadlines . . . cannot move 5 toward resolution on the merits.” In re: Phenylpropanolamine, 460 F.3d at 1228. 6 Thus, “this factor lends little support to a party whose responsibility it is to move a 7 case towards disposition on the merits but whose conduct impedes progress in that 8 direction.” Id. (internal quotation marks omitted). The case has been stalled by 9 Petitioner’s failure to either pay the $5 filing fee or file a completed request for 10 leave to proceed in forma pauperis, or otherwise respond to the Order or OSC. 11 Still, the public policy favoring the resolution of disputes on the merits is strong 12 and, under the circumstances, outweighs Petitioner’s noncompliance and inaction. 13 14 E. Dismissal Without Prejudice 15 In summary, Petitioner’s failure to either pay the $5 filing fee or file a 16 completed request for leave to proceed in forma pauperis, failure to respond to the 17 Order or OSC, and failure to otherwise participate in this lawsuit since April 19, 18 2022 constitute willful unreasonable delay. Four of the Rule 41(b) dismissal factors 19 weigh in favor of dismissal, whereas only one factor weighs against dismissal. 20 “While the public policy favoring disposition of cases on their merits weighs 21 against [dismissal], that single factor is not enough to preclude imposition of this 22 sanction when the other four factors weigh in its favor.” Rio Props., Inc. v. Rio Int’l 23 Interlink, 284 F.3d 1007, 1022 (9th Cir. 2002). The Court concludes that dismissal 24 of this action for failure to prosecute and to comply with Court orders is warranted, 25 but, consistent with Rule 41(b) and this Court’s exercise of its discretion, the 26 dismissal is without prejudice. 27 28

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1 | IV. CONCLUSION 2 IT THEREFORE IS ORDERED that this Petition is DISMISSED without 3 || prejudice. No further filings shall be accepted under this case number. 5 || VV. CERTIFICATE OF APPEALABILITY 6 Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the 7 || United States District Courts, the Court “must issue or deny a certificate of 8 || appealability when it enters a final order adverse to the applicant.” The Court has 9 || considered whether a certificate of appealability is warranted. See 28 U.S.C. § 10 || 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). The Court concludes 11 || that a certificate of appealability is not warranted; thus, a certificate of appealability 12 | is DENIED. 13 LL ,£ psJPprse

17 || Presented by: 18 : 19 — ye xc] — 29 || UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28