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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

9 10 | DANIEL LEE DUVALL, Case No. 8:21-cv-01254-PSG-MAR 11 Petitioner, | MEMORANDUM AND ORDER

DISMISSING CASE

13;| PEOPLE OF THE STATE OF 14 | CALIFORNIA, 15 Defendant. 16 17 18 I. 19 INTRODUCTION 20 On July 11, 2021, Petitioner Daniel Lee Duvall (“Petitioner”), proceeding pro 21 | se, constructively filed’ a Petition for Writ of Habeas Corpus by a Person in State 22 | Custody (“Petition”) pursuant to 28 U.S.C. § 2254 (“section 2254”). ECF Docket 23 | No. (“Dkt.”) 1.’ On August 6, 2021, the Court granted Petitioner’s request for a stay 24 | so that he could exhaust claims in state court, ordering him to file quarterly status 25 20)

27 | coat cot dein the pocting erates cd he doen tahel ikecee 5g. | Marshall, 627 F.3d 768, 770 n.1 (9th Cit. 2010) (citation omitted). 2 ATT Mtatinne tn clectennicalle Lled daeamente safer tm the CMI/ECE nacinatan

1 | reports. Dkt. 5. Petitioner has not filed a status report or responded to the Court’s 2 correspondence in over a year. For the reasons below, the Court DISMISSES this 3 | action, without prejudice. 4 II. 5 BACKGROUND 6 On July 11, 2021, Petitioner constructively filed the instant Petition. Dkt. 1. 7 The Petition appeared to be timely. In the Petition, Petitioner requested a stay to 8 exhaust some of his claims in state court. Id. 9 On August 6, 2021, the Court granted Petitioner’s request and ordered him to file quarterly status reports. Dkt. 5. Petitioner filed three (3) status reports, the last of 11. which was filed on March 17, 2022, wherein he indicated that he had sent his state petition to be filed in superior court. Dkts. 6-8. 13 Petitioner did not file his fourth status report. On August 9, 2022, the Court 14 issued an Order to Show Cause (“OSC”) directing Petitioner to file a status report and 15 warning that failure to file a First Amended Petition may result in the case being 16 dismissed. Dkt. 9. On September 26, 2022, the Court issued a second OSC directing 17 Petitioner to file a status report by October 11, 2022. Dkt. 10. The Court again 18 warned that the action “will be dismissed for failure to prosecute and comply with 19 | court orders” if Petitioner did not file a status report. Id. The Court issued a final 20 OSC on June 7, 2023, giving Petitioner one last chance to respond by June 21, 2023. 21 | Dkt. 12. 22, To date, Petitioner has failed to file a further status report or otherwise respond 23 to the Court’s OSCs, nor has he communicated with the Court whatsoever since his 24 Match 17, 2022 status report. 25 | /// 26 /// 27 | /// 28 ///

1 Ill. 2 DISCUSSION 3 |A. APPLICABLE LAW District courts have sua sponte authority to dismiss actions for failure to 5 | prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. Wabash 6 | RR. Co., 370 US. 626, 629-30 (1962); Hells Canyon Pres. Council v. U.S. Forest 7 | Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating courts may dismiss an action under 8 | Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiffs failure to prosecute 9 | ot comply with the Federal Rules of Civil Procedure or the court’s orders); Pagtalunan 10 | v. Galaza, 291 F.3d 639, 641-45 Oth Cir. 2002) (district court may dismiss habeas 11 | petition for failure to obey court order or failure to prosecute); Ferdik v. Bonzelet, 12 | 963 F.2d 1258, 1260 (9th Cir. 1992) (ordering dismissal for failure to comply with 13 | court orders). 14 In deciding whether to dismiss for failure to prosecute or comply with court 15 | orders, a district court must consider five (5) factors: “(1) the public’s interest in 16 | expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 17 | risk of prejudice to the defendants; (4) the public policy favoring disposition of cases 18 | on their merits; and (5) the availability of less drastic sanctions.” Omstead v. Dell, 19 | Inc., 594 F.3d 1081, 1084 Oth Cir. 2010) (quoting Henderson v. Duncan, 779 F.2d 20 | 1421, 1423 (9th Cir. 1986)). 21 “(The Ninth Circuit] ‘may affirm dismissal where at least four factors support 22 | dismissal... or where at least three factors “strongly” support dismissal.”” Yourish v. 23 | California Amplifier, 191 F.3d 983, 990 Oth Cir. 1999) (quoting Hernandez v. City of 24 | El Monte, 138 F.3d 393, 399 Oth Cir. 1998)). In a case involving sua sponte 25 | dismissal, however, the fifth Henderson factor regarding the availability of less drastic 26 | sanctions warrants special focus. Hernandez, 138 F.3d at 399. 27 | /// 28 | ///

1 |B. ANALYSIS Z 1, The public’s interest in expeditious resolution of litigation 3 In the instant action, the public’s interest in expeditious resolution of litigation 4 | weighs in favor of dismissal. See Pagtalunan v. Galaza, 291 F.3d 639, 642 (th Cir. 5 | 2002) (“The public’s interest in expeditious resolution of litigation always favors 6 | dismissal.” (quoting Yourish, above) (internal quotation omitted)). Petitioner has not 7 | filed a status report in over a year, nor has he otherwise responded to the Coutt’s 8 | three (3) OSCs. Given that Petitioner has failed to interact with the Court for over 9 | fifteen (15) months, this factor weighs in favor of dismissal. See also Pagtalunan, 291 10 | F.3d at 642 (finding that the plaintiffs failure to pursue the case for almost four (4) 11 | months weighed in favor of dismissal). 12 2. The Court’s need to manage its docket 13 The second factor—the Court’s need to manage its docket—likewise weighs in 14 | favor of Dismissal. Courts have “the power to manage their dockets without being 15 subject to the endless vexatious noncompliance of litigants.” See Ferdik, 963 F.2d at 16 | 1261. As such, the second factor looks to whether a particular case has “consumed . . 17 | . time that could have been devoted to other cases on the [Coutrt’s] docket.” See 18 | Pagtalunan, 291 F.3d at 642; Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th 19 | Cir. 2004) (“[R]esources continue to be consumed by a case sitting idly on the court’s 20 | docket.’’). 21 On August 9, 2022, the Court issued an order staying the case and ordering 22 | Petitioner to file quarterly status reports. Dkt. 5. The order explicitly cautioned 23 | Petitioner that “[f]ailure to file timely reports as directed above will result in a 24 | recommendation that this action be dismissed for failure to prosecute and 25 | obey Court orders pursuant to Federal Rule of Civil Procedure 41(b).” Id. at 2. 26 On August 9, 2022, after Petitioner had failed to file a status report for several 27 | months, the Court issued an OSC why the action should not be dismissed for failure 28 | to prosecute. Dkt. 9. The Court issued a second OSC on September 26, 2022,

1 | warning that failure to respond will result in dismissal. Dkts. 10. The Court issued a 2 | third OSC on June 7, 2023, giving Petitioner one final chance to respond before 3 | dismissal. Dkt. 12. 4 Petitioner has failed to file a status report, or otherwise respond to any of the 5 | Court’s orders, all of which warned Petitioner that his failure to comply could or 6 | would result in the dismissal of the action. See Dkts. 5,9, 10, 12. Petitioner’s failure 7 | to prosecute and follow Court orders hinders the Court’s ability to move this case 8 | toward disposition and suggests Petitioner does not intend to or cannot litigate this 9 | action diligently. Consequently, the Court’s need to manage its docket favors 10 | dismissal here. 1 3. The risk of prejudice to Defendant 12 The third factor—prejudice to Defendant(s)—also weighs in favor of dismissal. 13 | A rebuttable presumption of prejudice to defendant arises when plaintiffs 14 | unreasonably delay prosecution of an action. See In re Eisen, 31 F.3d 1447, 1452-53 15 | (9th Cir. 1994) (“[T]he failure to prosecute diligently is sufficient by itself to justify 16 | dismissal... [t]he law presumes injury from unreasonable delay.”). 17 Nothing suggests such a presumption is unwarranted in this case. Petitioner 18 | has not provided any treason for his failure to comply with the Court’s order or OSCs 19 | and for his failure to clearly communicate with the Coutt since he filed a status report 20 | on March 16, 2022. Dkt. 8. Given the length of the delay, the Court finds 21 | Petitioner’s delay in prosecuting this case to be unreasonable. Thus, prejudice is 22, | presumed and weighs in favor of dismissal. See, e.g., In re Phenylpropanolamine 23 | (PPA) Prod. Liab. Litig., 460 F.3d at 1227 (“The law . . . presumes prejudice from 24 | unreasonable delay.”). 25 4. Public policy favoring disposition on the metits 26 The fourth factor—public policy in favor of deciding cases on the merits— 27 | ordinarily weighs against dismissal. See In re Phenylpropanolamine (PPA) Prod. Liab. 28 | Litig., 460 F.3d at 1228. Here, as it usually does, the fourth factor weighs against

1 | dismissal. Indeed, the Petition appears timely as filed, but if the case were dismissed, 2 | any refiled petition may be found untimely, thereby precluding Petitioner from having 3 | his claims heard on the merits. However, despite having been given three (3) 4 | chances to respond over the course of over an entire year, Petitioner has failed to 5 }| correspond with the Court in any way. 6 It is ultimately Petitioner’s responsibility to move towards disposition at a 7 | reasonable pace and avoid dilatory and evasive tactics. See Morris v. Morgan Stanley, 8 | 942 F.2d 648, 652 (th Cir. 1991). Petitioner has not discharged this responsibility 9 | despite having been: (1) instructed on his responsibilities; (2) granted sufficient time 10 | in which to discharge them; and (3) warned of the consequences of failure to do so. 11 | See Dkts. 6, 9, 10,12. Under these circumstances, and without any other information 12 | from Petitioner, the policy favoring resolution of disputes on the merits does not 13 | outweigh Petitioner’s failure to obey Court Orders or to file responsive documents 14 | within the time granted. 15 5. Availability of less drastic alternatives 16 The fifth factor—availability of less drastic sanctions—also weighs in favor of 17 | dismissal. A “district court need not exhaust every sanction short of dismissal before 18 } finally dismissing a case, but must explore possible and meaningful alternatives.” 19 | Henderson, 779 F.2d at 1424. Less drastic alternatives to dismissal include warning a 20 | party that dismissal could result from failure to obey a court order. See Malone, 833 21 | F.2d at 132.1. Further, “a district court’s warning to a party that his [or her] failure 22 | to obey the court’s order will result in dismissal can satisfy the ‘consideration of 23 | alternatives’ requirement.” Ferdik, 963 F.2d at 1262 (citations omitted). 24 Here, the Court cannot move the case toward disposition without Petitioner’s 25 | compliance with Court orders or participation in this litigation. Petitioner has shown 26 | he is either unwilling or unable to comply with Court orders by filing responsive 27 | documents or otherwise cooperating in prosecuting this action. Given this record, the 28

1 | Court finds that any less drastic alternatives to dismissal would be inadequate to 2 | remedy Petitioner’s failures to obey Court orders and to prosecute his case. 3 6. Summaty 4 Finally, while dismissal should not be entered unless Petitioner has been 5 | notified dismissal is imminent, see W. Coast Theater Corp. v. City of Portland, 897 6 | F.2d 1519, 1523 Oth Cir. 1990), the Court has warned Petitioner about the potential 7 | dismissal in the August 6, 2021 order and three (3) separate OSCs. See Dkts. 5, 9, 10, 8 | 12. 9 As discussed above, four (4) of the Rule 41(b) factors weigh in favor of 10 | dismissal. Accordingly, this action is subject to dismissal. 11 IV. 12 ORDER 13 IT IS THEREFORE ORDERED THAT Petitionet’s case is DISMISSED 14 | without prejudice. 15 Dated: June : 2B, 2023 17 HONORABLE PHILIP $. GUTIERREZ United States District Judge 19 20 Zl

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