Case 2:22-cv-08290-DOC-PD Document 16 Filed 02/27/23 Page 1 of 5 Page ID #:100

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BRYAN IZAGUIRRE, Case No. 2:22-cv-08290-DOC-PD

12 Plaintiff, ORDER DISMISSING ACTION 13 v. FOR FAILURE TO

PROSECUTE

14

UNITED STATES OF AMERICA.

15 Defendant. 16

17

I. Pertinent Procedural History and Plaintiff’s Claims

18 On November 14, 2022, Plaintiff Bryan Izaguirre, proceeding pro se, 19 filed a Complaint pursuant to 42 U.S.C. § 1983 against the United States of 20 America. [Dkt. No. 1.] The Complaint alleges that in 2020, Rayanna Miller 21 provided the number of Plaintiff’s lost social security card to the Orange 22 County Department of Child Support Services, and that Plaintiff’s wages were 23 subsequently garnished in an amount totaling $9,752.61. [Id. at 2-4; Exh. B, 24 C.] The Complaint further alleges that in December 2021, a paternity test 25 revealed that Plaintiff was not the father of Rayanna Miller’s child, and 26 Plaintiff’s child support obligations were terminated. [Id. at 3; Exh. G.] 27 Plaintiff alleges that the Social Security Administration (“SSA”) provided him 28 Case 2:22-cv-08290-DOC-PD Document 16 Filed 02/27/23 Page 2 of 5 Page ID #:101

1 with a right to sue letter and thus the ability to file the instant action. [Id. at 2 3-4; Exh. H.] 3 Plaintiff alleges that as a result of these events, his First, Fourth, Fifth, 4 Eighth, Ninth, Thirteenth, and Fourteenth Amendment rights were violated. 5 [Id. at 5-6.] He seeks compensatory and punitive damages in the amount of 6 $369,880,000,000,000,000,000,000,000.00. [Id. at 7.] He also seeks a “cease- 7 and-desist order on the defendant ‘United States’ for any surveillance they 8 have placed on me.” [Id.] 9 On December 16, 2022, Plaintiff filed a First Amended Complaint 10 (“FAC”). [Dkt. No. 8.] The FAC is substantively identical to the original 11 Complaint and contains only minor formatting changes. [See Dkt. Nos. 1, 8.] 12 On December 22, 2022, the Court screened the FAC pursuant to 28 13 U.S.C. § 1915(e)(2)(B)(ii) and issued an Order to Show Cause (“OSC”) why the 14 Court should not recommend dismissal of the FAC for failure to state actionable claims no later than January 27, 2023. [Dkt. No. 10.] The OSC 15 was mailed to the address listed on the FAC. 16 On January 18, 2023, the OSC was returned in the mail to the Clerk, 17 with the notation “rts not deliverable as addressed.” [Dkt. No. 13.] On 18 January 23, 2023, the Court issued an Order requiring Plaintiff to provide an 19 updated address and show cause why the Court should not recommend 20 dismissal no later than February 8, 2023. [Dkt. No. 14.] On January 31, 21 2023, the Order was returned in the mail to the Clerk with the notation “rts: 22 unable to forward.” [Dkt. No. 15.] 23 To date, Plaintiff has not responded to the OSC or the subsequent order, 24 provided an updated address, or otherwise communicated with the Court 25 about his case since filing on November 14, 2022. Accordingly, the case is now 26 subject to dismissal for failure to prosecute pursuant to Rule 41(b) of the 27 Federal Rules of Civil Procedure and Local Rule 41-6. 28

2 Case 2:22-cv-08290-DOC-PD Document 16 Filed 02/27/23 Page 3 of 5 Page ID #:102

1 2 II. Discussion 3 Rule 41(b) grants district courts the authority to sua sponte dismiss 4 actions for failure to prosecute. Link v. Wabash R.R. Co., 370 U.S. 626, 629- 5 30 (1962). In determining whether dismissal for lack of prosecution is 6 warranted, a court must weigh several factors, including: (1) the public’s 7 interest in expeditious resolution of litigation; (2) the court’s need to manage 8 its docket; (3) the risk of prejudice to defendants; (4) the availability of less 9 drastic sanctions; and (5) the public policy favoring the disposition of cases on 10 their merits. Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002); Ferdik 11 v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992). Dismissal is appropriate 12 under the foregoing analysis “where at least four factors support dismissal ... 13 or where at least three factors ‘strongly’ support dismissal.” Hernandez v. 14 City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citations omitted). The first two factors – public interest in expeditious resolution of 15 litigation and the need to manage the Court’s docket – weigh in favor of 16 dismissal. Plaintiff did not file a second amended complaint or provide the 17 Court his updated address. His failure to file an amended complaint or 18 update his address—or show good cause for his delay—prevents the Court 19 from moving this case toward disposition and shows that Plaintiff does not 20 intend to litigate this action diligently. 21 Arguably, the third factor – prejudice to Defendant – also counsels in 22 favor of dismissal because Defendant in this case has been served. [Dkt. Nos. 23 7, 9.] Further, the Ninth Circuit has held that prejudice may be presumed 24 from unreasonable delay. See In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 25 1994); Moore v. Teflon Commc’ns. Corp., 589 F.2d 959, 967-68 (9th Cir. 1978). 26 Plaintiff’s inaction in this matter is an unreasonable delay. In the absence of 27 any explanation, non-frivolous or otherwise, for Plaintiff’s delay, the Court 28

3 Case 2:22-cv-08290-DOC-PD Document 16 Filed 02/27/23 Page 4 of 5 Page ID #:103

1 presumes prejudice. See Laurino v. Syringa Gen. Hosp., 279 F.3d 750, 753 2 (9th Cir. 2002) (presumption of prejudice can be rebutted by a non-frivolous 3 explanation); Pagtalunan, 291 F.3d at 642 (citing Yourish v. California 4 Amplifier, 191 F.3d 983, 991 (9th Cir. 1999)). 5 The fourth factor – the availability of less drastic sanctions – ordinarily 6 counsels against dismissal. However, the Court attempted to avoid outright 7 dismissal by giving Plaintiff ample time to communicate with the Court, 8 update the Court with his address, and file an amended complaint. Plaintiff 9 was also expressly warned that failure to comply with the Court’s orders could 10 result in dismissal. [Dkt. Nos. 10, 14.] Thus, the Court explored the only 11 meaningful alternatives to dismissal in its arsenal and found that they were 12 not effective. See Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) 13 (“The district court need not exhaust every sanction short of dismissal before 14 finally dismissing a case, but must explore possible and meaningful alternatives.”) (citation omitted). 15 The fifth factor – the general policy favoring resolution on the merits – 16 ordinarily weighs against dismissal. Pagtalunan, 291 F.3d at 643. It is, 17 however, the responsibility of the moving party to move the case toward 18 disposition on the merits at a reasonable pace and to refrain from dilatory and 19 evasive tactics. Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 20 1991). Because Plaintiff has failed to participate in his own lawsuit, retention 21 of this case would not increase the likelihood of the matter being resolved on 22 its merits. This factor does not weigh in favor of or against dismissal. 23 In sum, four out of the five factors support dismissal. The Court 24 concludes that dismissal for failure to prosecute is warranted. 25

26

27

28

4 Case 2:22-cv-08290-DOC-PD Document Filed 02/27/23 Page5of5 Page ID #:104 4 For the foregoing reasons, this action is dismissed for failure to 5 || prosecute. 6 || ITIS SO ORDERED. Abii 8 | Dated: February 27, 2023 a Corti 9 HON. DAVID O. CARTER

UNITED STATES DISTRICT JUDGE

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28