1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BRANDON EUGENE HUNTER, Case No. 2:22-cv-08404-CAS (MAA)

12 Plaintiff, ORDER OF DISMISSAL 13 v.

14 ALEX VILLANUEVA et al.,

15 Defendants.

16 17

18 I. SUMMARY OF PROCEEDINGS 19 On November 15, 2022, Plaintiff Brandon Eugene Hunter (“Plaintiff”), a 20 pretrial detainee currently housed at Sacramento County Mail Jail, filed a pro se 21 Complaint alleging violations of his civil rights pursuant to 28 U.S.C. § 1983. 22 (Compl., ECF No. 1.) On January 10, 2023, the Court granted Plaintiff’s 23 application to proceed in forma pauperis. (ECF Nos. 2, 5.) 24 Pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b), the Court screened and 25 dismissed the Complaint with leave to amend on January 23, 2023 (“Order”). 26 (Order, ECF No. 7.) The Court ordered Plaintiff to file a response to the Order, no 27 later than February 22, 2023, electing to proceed with one of the following options: 28 (1) file a First Amended Complaint (“FAC”); (2) proceed with the Complaint in its 1 current form; or (3) voluntary dismissal. (Id. at 9–10.) The Court cautioned 2 Plaintiff that “failure to respond to this Order may result in a recommendation 3 that this lawsuit be dismissed without prejudice for failure to prosecute and/or 4 failure to comply with a court order pursuant to Federal Rule of Civil 5 Procedure 41(b). See C.D. Cal. L.R. 41-1.” (Id. at 11.) 6 On March 9, 2023, in the absence of a filed FAC or other response to the 7 Order, the Court issued an Order to Show Cause, ordering Plaintiff to show cause 8 by April 10, 2023 why the Court should not recommend that the case be dismissed 9 for want of prosecution (“OSC”). (OSC, ECF No. 8.) The Court stated that if 10 Plaintiff filed a FAC or notice of dismissal on or before such date, the OSC would 11 be discharged, and no additional action need be taken. (Id.) The Court again 12 advised Plaintiff that “failure to comply with this order will result in a 13 recommendation that the lawsuit be dismissed for failure to prosecute and/or 14 comply with court orders. See Fed. R. Civ. P. 41(b); C.D. Cal. L.R. 41-1.” (Id.) 15 To date, Plaintiff has failed to file a FAC or otherwise comply with the Order, 16 and has not responded to the OSC. Indeed, Plaintiff has not communicated with the 17 Court since filing the Complaint on November 17, 2022. 18 II. LEGAL STANDARD 19 District courts may dismiss cases sua sponte for failure to prosecute or for 20 failure to comply with a court order under Federal Rule of Civil Procedure 41(b). 21 Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005); 22 see also Link v. Wabash R.R. Co., 370 U.S. 626, 629–30 (1962) (holding that the 23 court has “inherent power” to dismiss cases sua sponte for lack of prosecution). 24 Unless the Court states otherwise, a dismissal under Rule 41(b) operates as an 25 adjudication on the merits. Fed. R. Civ. P. 41(b). “Dismissal is a harsh penalty and 26 is to be imposed only in extreme circumstances.” In re: Phenylpropanolamine 27 (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone v. 28 USPS, 833 F.2d 128, 130 (9th Cir. 1987)). 1 “A Rule 41(b) dismissal ‘must be supported by a showing of unreasonable 2 delay.’” Omstead v. Dell, 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson 3 v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). In addition, the court must weigh 4 the following factors in determining whether a Rule 41(b) dismissal is warranted: 5 “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 6 to manage its docket; (3) the risk of prejudice to the defendants/respondents; (4) the 7 availability of less drastic alternatives; and (5) the public policy favoring disposition 8 of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). 9 The Ninth Circuit will “affirm a dismissal where at least four factors support 10 dismissal, or where at least three factors strongly support dismissal.” Dreith v. Nu 11 Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011) (quoting Yourish v. Cal. Amplifier, 12 191 F.3d 983, 990 (9th Cir. 1999)). Finally, “in order to warrant a sanction of 13 dismissal, the party’s violations of the court’s orders must be due to wilfulness or 14 bad faith.” Id. 15 III. DISCUSSION 16 A. The Public’s Interest in Expeditious Resolution and the Court’s 17 Need to Manage Its Docket 18 The first and second factors (the public’s interest in expeditious resolution of 19 litigation and the Court’s need to manage its docket)1 weigh in favor of dismissal. 20 “Orderly and expeditious resolution of disputes is of great importance to the rule of 21 law.” In re: Phenylpropanolamine, 460 F.3d at 1227. “The public’s interest in 22 expeditious resolution of litigation always favors dismissal.” Pagtalunan, 291 F.3d 23 at 642 (quoting Yourish, 191 F.3d at 990). In addition, district courts “have an 24 inherent power to control their dockets,” In re: Phenylpropanolamine, 460 F.3d at 25 1227 (quoting Thompson v. Hous. Auth. of L.A., 782 F.2d 829, 831 (9th Cir. 1986)), 26 and “are best suited to determine when delay in a particular case interferes with 27 1 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). 1 docket management and the public interest.” Yourish, 191 F.3d at 990 (quoting Ash 2 v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984)). 3 Plaintiff has failed to file a FAC or otherwise comply with the Order, has 4 failed to respond to the OSC, and has not participated in this lawsuit since 5 November 17, 2022. The Court concludes that Plaintiff’s inaction and lack of 6 communication with the Court constitute willful unreasonable delay. See, e.g., 7 Thomas v. Maricopa Cnty. Jail, 265 F. App’x. 606, 607 (9th Cir. 2008) (holding 8 that district court did not abuse its discretion by dismissing pro se prisoner lawsuit 9 for failure to respond to a court order for almost three months). Plaintiff’s 10 noncompliance also interferes with the public’s interest in the expeditious 11 resolution of this litigation and hinders the Court’s ability to manage its docket. See 12 In re: Phenylpropanolamine, 460 F.3d at 1227 (“[The Ninth Circuit] defer[s] to the 13 district court’s judgment about when a delay becomes unreasonable ‘because it is in 14 the best position to determine what period of delay can be endured before its docket 15 becomes unmanageable.”) (quoting In re Eisen, 31 F.3d at 1451)). The first and 16 second factors favor dismissal. 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 /// 1 Here, Plaintiff has failed to file a FAC or otherwise comply with the Order, 2 and has failed to respond to the OSC. Indeed, Plaintiff has not participated in this 3 lawsuit since November 17, 2022. As “a presumption of prejudice arises from the 4 plaintiff’s unexplained failure to prosecute,” the third factor favors dismissal. See 5 Hernandez v. City of El Monte, 138 F.3d 393, 400 (9th Cir. 1998). 6 C. Availability of Less Drastic Alternatives 7 The fourth factor (the availability of less drastic alternatives) also supports 8 dismissal. “The district court need not exhaust every sanction short of dismissal 9 before finally dismissing a case, but must explore possible and meaningful 10 alternatives.” Henderson, 779 F.2d at 1424. 11 The Court considered and implemented less drastic alternatives prior to 12 dismissal. The Court twice warned Plaintiff that failure to respond to the Court’s 13 orders would result in a recommendation that the action be dismissed for failure to 14 prosecute and/or failure to comply with Court orders pursuant to Federal Rule of 15 Civil Procedure 41(b). See In re: Phenylpropanolamine, 460 F.3d at 1229 16 (“Warning that failure to obey a court order will result in dismissal can itself meet 17 the ‘consideration of alternatives’ requirement.”). The Court also extended 18 Plaintiff’s deadline to file a FAC or otherwise respond to the Order from February 19 22, 2023 to April 10, 2023. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 20 1992) (holding that the district court’s allowance of an additional thirty days for 21 plaintiff to file an amended complaint was an attempt at a less drastic sanction). 22 The fourth factor weighs in favor of dismissal. 23 D. Public Policy Favoring Disposition on the Merits 24 As to the fifth factor, “[p]ublic policy favors disposition of cases on the 25 merits.” Pagtalunan, 291 F.3d at 643. However, “a case that is stalled or 26 unreasonably delayed by a party’s failure to comply with deadlines . . . cannot move 27 toward resolution on the merits.” In re: Phenylpropanolamine, 460 F.3d at 1228. 28 Thus, “this factor lends little support to a party whose responsibility it is to move a 1 || case towards disposition on the merits but whose conduct impedes progress in that 2 || direction.” /d. (internal quotation marks omitted). The case has been stalled by 3 || Plaintiff's failure to file a FAC or otherwise comply with the Order, and failure to 4 || respond to the OSC. Still, the public policy favoring the resolution of disputes on 5 || the merits is strong and, under the circumstances, outweighs Plaintiff's non- 6 || compliance and inaction. 7 E. Dismissal Without Prejudice 8 In summary, Plaintiffs failures—to file a FAC or otherwise comply with the 9 || Order, to respond to the OSC, and to otherwise participate in this lawsuit since 10 || filing the Complaint on November 17, 2022—constitute willful unreasonable delay. 11 || Four of the Rule 41(b) dismissal factors weigh in favor of dismissal, whereas only 12 || one factor weighs against dismissal. “While the public policy favoring disposition 13 || of cases on their merits weighs against [dismissal], that single factor is not enough 14 || to preclude imposition of this sanction when the other four factors weigh in its 15 || favor.” Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1022 (9th Cir. 2002). 16 || The Court concludes that dismissal of this action for failure to prosecute and to 17 || comply with Court orders is warranted, but, consistent with Rule 41(b) and this 18 || Court’s exercise of its discretion, the dismissal is without prejudice. 19} IV. CONCLUSION 20 IT THEREFORE IS ORDERED that this lawsuit is DISMISSED without 21 || prejudice. No further filings shall be accepted under this case number. Miahes Uh bag 23 || DATED: April 27, 2023

CHRISTINA A. SNYDER

UNITED STATES DISTRICT JUDGE

25 || Presented by: 26 27 “Wie 2g || UNITED STATES MAGISTRATE JUDGE