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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 JAMAR LAVELL MANARD, Case No. 2:22-cv-04646-FMO-KES

12 Plaintiff,

ORDER DISMISSING ACTION

13 v.

WITHOUT PREJUDICE FOR LACK

14 CSP LAC, et al., OF PROSECUTION

15 Defendants.

16 I.

17 BACKGROUND

18 In November 2022, the Court received from pro se Plaintiff Jamar Lavell

19 Manard (“Plaintiff”), an inmate at California State Prison- Los Angeles County

20 (“CSP-LAC”), a Second Amended Complaint (“SAC”) alleging claims under (1) 21 42 U.S.C. § 1983; (2) Title II of the Americans with Disabilities Act (“ADA”), 42 22 U.S.C. § 12132; and (3) Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. 23 Pursuant to 28 U.S.C. § 1915A, the Court screened the SAC. (Dkt. 15.) The Court 24 offered Plaintiff a choice. First, he could voluntarily dismiss some claims. Second, 25 he could file a Third Amended Complaint that attempted to remedy the defects the 26 screening order pointed out. Or, third, he could file a Notice of Intent to move 27 forward with the SAC. (Id. at 4.) On February 9, 2023, Plaintiff moved for an 28 1 extension of time to prepare a Third Amended Complaint. (Dkt. 16.) This 2 indicated that he had chosen option two. The Court granted that motion. (Dkt. 17.) 3 The Court gave Plaintiff until May 1, 2023, to file a Third Amended Complaint. 4 (Id.) As of the date of this order, the Court has not received any further filings from 5 Plaintiff. 6 II. 7 LEGAL STANDARD 8 A district court may dismiss an action for failure to prosecute, failure to 9 follow court orders, or failure to comply with the federal or local rules. See Fed. R. 10 Civ. P. 41(b); Link v. Wabash R. Co., 370 U.S. 626, 629-30 (1962); Ghazali v. 11 Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). Central District of California 12 Local Rule 41-1 provides, “Civil suits which have been pending for an 13 unreasonable period of time without any action having been taken therein may, 14 after notice, be dismissed for want of prosecution.”1 15 The Court has discretion to dismiss the action with or without prejudice. See 16 Fed. R. Civ. P. 41(b) (“[u]nless the dismissal order states otherwise,” or certain 17 exceptions apply, a dismissal pursuant to Federal Rule of Civil Procedure 41(b) 18 “operates as an adjudication on the merits”); Local Rule 41-2 (“[u]nless the Court 19 provides otherwise, any dismissal pursuant to [Local Rule] 41-1 shall be without 20 prejudice”); Al-Torki v. Kaempen, 78 F.3d 1381, 1385 (9th Cir. 1996) (“Dismissal 21 with prejudice and default on counterclaims, for willful and inexcusable failure to 22 prosecute, are proper exercises of discretion under Federal Rules of Civil Procedure 23 41(b), 16(f), and the inherent power of the court.”). 24 In determining whether to dismiss a case for failure to prosecute or failure to 25

26 1 The Local Rules of the U.S. District Court for the Central District of 27 California are available online at: https://www.cacd.uscourts.gov/court- procedures/local-rules. 28 1 comply with court orders, the Ninth Circuit has instructed district courts to consider 2 the following five factors: (1) the public’s interest in expeditious resolution of 3 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 4 defendants; (4) the availability of less drastic sanctions; and (5) the public policy 5 favoring disposition of cases on their merits. In re Phenylpropanolamine (PPA) 6 Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006). The test is not 7 “mechanical,” but provides a “non-exhaustive list of things” to “think about.” 8 Valley Eng’rs v. Elec. Eng’g Co., 158 F.3d 1051, 1057 (9th Cir. 1998). 9 III. 10 DISCUSSION 11 Here, the first two factors favor dismissal. The first factor—the public’s 12 interest in the expeditious resolution of litigation—“always favors dismissal.” 13 Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). The second factor— 14 the Court’s need to manage its docket—favors dismissal here because Plaintiff’s 15 “noncompliance has caused [this] action to come to a complete halt, thereby 16 allowing [him] to control the pace of the docket rather than the Court.” Id. (internal 17 quotations marks omitted). 18 The third factor—prejudice to Defendants—weighs in favor of dismissal, 19 although perhaps not as strongly as some of the other factors. Because this Court 20 dismissed the complaint on screening, Defendants have not been served. See 21 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (“We have previously 22 recognized that pendency of a lawsuit is not sufficiently prejudicial in and of itself 23 to warrant dismissal.”); Hunter v. Sandoval, No. 17-cv-09257-CJC-SHK, 2018 U.S. 24 Dist. LEXIS 210543 at *5, 2018 WL 6570870 at *2 (C.D. Cal. Dec. 12, 2018) 25 (finding no prejudice to a defendant who had not yet been served). On the other 26 hand, a rebuttable presumption of prejudice to the defendants arises when a plaintiff 27 unreasonably delays prosecution of an action, In re Eisen, 31 F.3d 1447, 1452-53 28 (9th Cir. 1994), and unnecessary delay “inherently increases the risk that witnesses’ 1 | memories will fade and evidence will become stale.” Pagtalunan, 291 F.3d at 643. 2 The fourth factor—availability of less drastic sanctions—favors dismissal. 3 || The Court’s prior orders warned Plaintiff that failure to respond might result in a 4 | dismissal of this action. (Dkt. 7 at 9; Dkt. 11 at 14; Dkt. 15 at 4.) See Ferdik v. 5 | Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (“a district court’s warning to a 6 | party that his failure to obey the court’s order will result in dismissal can satisfy the 7 | ‘consideration of alternatives’ requirement’) (citation omitted). 8 The fifth factor—public policy favoring a disposition of an action on its 9 || merits—arguably weighs against dismissal here. Pagtalunan v. Galaza, 291 F.3d 10 | 639, 643 (9th Cir. 2002). However, the effect of this factor 1s somewhat mitigated 11 | by the fact that much of Plaintiff's Second Amended Complaint failed to state a 12 | claim for relief for the reasons explained in the Court’s January 24, 2023 dismissal 13 | order. (Dkt. 15.) 14 Given that the enumerated factors largely support dismissal, this action will 15 || be dismissed pursuant to Rule 41(b) and Local Rule 41-1. Considering all of the 16 || circumstances, and in particular given that Plaintiff is incarcerated and proceeding 17 || pro se, the dismissal shall be without prejudice. 18 IV. 19 CONCLUSION 20 IT IS THEREFORE ORDERED that Judgment will be entered dismissing 21 | this action without prejudice for failure to prosecute. 22 | DATED: May 30, 2023 /s/ 3 FERNANDO M. OLGUIN

UNITED STATES DISTRICT JUDGE

24 Presented by: 25 Stow □□ Sooty

KAREN E. SCOTT

27 | UNITED STATES MAGISTRATE JUDGE 28