1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TONY MORENO, Case No. 2:23-cv-00529-PA (MAA)

12 Plaintiff, ORDER OF DISMISSAL 13 v.

14 L. VACA et al.,

15 Defendants.

16 17

18 I. SUMMARY OF PROCEEDINGS 19 On January 24, 2023, Plaintiff Tony Moreno (“Plaintiff”), a state inmate 20 currently housed at California State Prison, Los Angeles County, filed a pro se 21 Complaint alleging violations of his civil rights pursuant to 42 U.S.C. § 1983. 22 (Compl., ECF No. 1.) On January 30, 2023, the Court granted Plaintiff’s 23 application to proceed in forma pauperis. (ECF Nos. 2, 5, 6.) 24 Pursuant to 28 U.S.C. §§ 1915A(b), 1915(e)(2)(B), the Court screened and 25 dismissed the Complaint with leave to amend on March 6, 2023 (“Order”). (Order, 26 ECF No. 10.) The Court ordered Plaintiff to file a response to the Order, no later 27 than April 5, 2023, electing to proceed with one of the following options: (1) file a 28 First Amended Complaint (“FAC”); (2) proceed with the Complaint in its current 1 form; or (3) voluntary dismissal. (Id. at 8–10.) The Court cautioned Plaintiff that 2 “failure to respond to this Order may result in a recommendation that the 3 lawsuit be dismissed without prejudice for failure to prosecute and/or failure 4 to comply with a court order pursuant to Federal Rule of Civil Procedure 5 41(b). See C.D. Cal. L.R. 41-1.” (Id. at 10.) 6 On April 24, 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 May 24, 2023 why the Court should not recommend that the case be dismissed 9 for want of prosecution (“OSC”). (OSC, ECF No. 12.) 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 a Certification and Notice of Interested Parties on February 27, 18 2023. 19 20 II. LEGAL STANDARD 21 District courts may dismiss cases sua sponte for failure to prosecute or for 22 failure to comply with a court order under Federal Rule of Civil Procedure 41(b). 23 Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005); 24 see also Link v. Wabash R.R. Co., 370 U.S. 626, 629–30 (1962) (holding that the 25 court has “inherent power” to dismiss cases sua sponte for lack of prosecution). 26 Unless the Court states otherwise, a dismissal under Rule 41(b) operates as an 27 adjudication on the merits. Fed. R. Civ. P. 41(b). “Dismissal is a harsh penalty and 28 is to be imposed only in extreme circumstances.” In re: Phenylpropanolamine 1 (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone v. 2 USPS, 833 F.2d 128, 130 (9th Cir. 1987)). 3 “A Rule 41(b) dismissal ‘must be supported by a showing of unreasonable 4 delay.’” Omstead v. Dell, 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson 5 v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). In addition, the court must weigh 6 the following factors in determining whether a Rule 41(b) dismissal is warranted: 7 “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 8 to manage its docket; (3) the risk of prejudice to the defendants/respondents; (4) the 9 availability of less drastic alternatives; and (5) the public policy favoring disposition 10 of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). 11 The Ninth Circuit will “affirm a dismissal where at least four factors support 12 dismissal, or where at least three factors strongly support dismissal.” Dreith v. Nu 13 Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011) (quoting Yourish v. Cal. Amplifier, 14 191 F.3d 983, 990 (9th Cir. 1999)). Finally, “in order to warrant a sanction of 15 dismissal, the party’s violations of the court’s orders must be due to wilfulness or 16 bad faith.” Id. 17 18 III. DISCUSSION 19 A. The Public’s Interest in Expeditious Resolution and the Court’s 20 Need to Manage Its Docket 21 The first and second factors (the public’s interest in expeditious resolution of 22 litigation and the Court’s need to manage its docket)1 weigh in favor of dismissal. 23 “Orderly and expeditious resolution of disputes is of great importance to the rule of 24 law.” In re: Phenylpropanolamine, 460 F.3d at 1227. “The public’s interest in 25 expeditious resolution of litigation always favors dismissal.” Pagtalunan, 291 F.3d 26 at 642 (quoting Yourish, 191 F.3d at 990). In addition, district courts “have an 27 1 The first two factors usually are reviewed together “to determine if there is an 28 unreasonable delay.” In re Eisen, 31 F.3d 1447, 1452 (9th Cir. 1994). 1 inherent power to control their dockets,” In re: Phenylpropanolamine, 460 F.3d at 2 1227 (quoting Thompson v. Hous. Auth. of L.A., 782 F.2d 829, 831 (9th Cir. 1986)), 3 and “are best suited to determine when delay in a particular case interferes with 4 docket management and the public interest.” Yourish, 191 F.3d at 990 (quoting Ash 5 v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984)). 6 Plaintiff has failed to file a FAC or otherwise comply with the Order, has 7 failed to respond to the OSC, and has not participated in this lawsuit since February 8 27, 2023. The Court concludes that Plaintiff’s inaction and lack of communication 9 with the Court constitute willful unreasonable delay. See, e.g., Thomas v. Maricopa 10 Cnty. Jail, 265 F. App’x. 606, 607 (9th Cir. 2008) (holding that district court did 11 not abuse its discretion by dismissing pro se prisoner lawsuit for failure to respond 12 to a court order for almost three months). Plaintiff’s noncompliance also interferes 13 with the public’s interest in the expeditious resolution of this litigation and hinders 14 the Court’s ability to manage its docket. See In re: Phenylpropanolamine, 460 F.3d 15 at 1227 (“[The Ninth Circuit] defer[s] to the district court’s judgment about when a 16 delay becomes unreasonable ‘because it is in the best position to determine what 17 period of delay can be endured before its docket becomes unmanageable.”) (quoting 18 In re Eisen, 31 F.3d at 1451)). The first and second factors favor dismissal. 19 B. Risk of Prejudice to Defendants 20 The third factor (risk of prejudice to the defendants) also weighs in favor of 21 dismissal. “A defendant suffers prejudice if the plaintiff’s actions impair the 22 defendant’s ability to go to trial or threaten to interfere with the rightful decision of 23 the case.” In re: Phenylpropanolamine, 460 F.3d at 1227 (quoting Adriana Int’l 24 Corp. v. Thoeren, 913 F.2d 1406, 1412 (9th Cir. 1990)). “The law also presumes 25 prejudice from unreasonable delay.” Id. The risk of prejudice to a defendant is 26 related to a plaintiff’s reason for failure to prosecute an action. Pagtalunan, 291 27 F.3d at 642. “Whether prejudice is sufficient to support an order of dismissal is in 28 /// 1 part judged with reference to the strength of the plaintiff’s excuse for the default.” 2 Malone, 833 F.2d at 131. 3 Here, Plaintiff has failed to file a FAC or otherwise comply with the Order, 4 and has failed to respond to the OSC. Indeed, Plaintiff has not participated in this 5 lawsuit since February 27, 2023. As “a presumption of prejudice arises from the 6 plaintiff’s unexplained failure to prosecute,” the third factor favors dismissal. 7 Hernandez v. City of El Monte, 138 F.3d 393, 400 (9th Cir. 1998). 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 twice warned Plaintiff that failure to respond to the Court’s 15 orders would result in a recommendation that the action be dismissed for failure to 16 prosecute and/or failure to comply with Court orders pursuant to Federal Rule of 17 Civil Procedure 41(b). See In re: Phenylpropanolamine, 460 F.3d at 1229 18 (“Warning that failure to obey a court order will result in dismissal can itself meet 19 the ‘consideration of alternatives’ requirement.”). The Court also extended 20 Plaintiff’s deadline to file a FAC or otherwise respond to the Order from April 5, 21 2023 to May 24, 2023. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) 22 (holding that the district court’s allowance of an additional thirty days for plaintiff 23 to file an amended complaint was an attempt at a less drastic sanction). The fourth 24 factor weighs in favor of dismissal. 25 D. Public Policy Favoring Disposition on the Merits 26 As to the fifth factor, “[p]ublic policy favors disposition of cases on the 27 merits.” Pagtalunan, 291 F.3d at 643. However, “a case that is stalled or 28 unreasonably delayed by a party’s failure to comply with deadlines . . . cannot move 1 toward resolution on the merits.” In re: Phenylpropanolamine, 460 F.3d at 1228. 2 Thus, “this factor lends little support to a party whose responsibility it is to move a 3 case towards disposition on the merits but whose conduct impedes progress in that 4 direction.” Id. (internal quotation marks omitted). The case has been stalled by 5 Plaintiff’s failure to file a FAC or otherwise comply with the Order, and failure to 6 respond to the OSC. Still, the public policy favoring the resolution of disputes on 7 the merits is strong and, under the circumstances, outweighs Plaintiff’s 8 noncompliance and inaction. 9 E. Dismissal Without Prejudice 10 In summary, Plaintiff’s failures—to file a FAC or otherwise comply with the 11 Order, respond to the OSC, and otherwise participate in this lawsuit since February 12 27, 2023—constitute willful unreasonable delay. Four of the Rule 41(b) dismissal 13 factors weigh in favor of dismissal, whereas only one factor weighs against 14 dismissal. “While the public policy favoring disposition of cases on their merits 15 weighs against [dismissal], that single factor is not enough to preclude imposition 16 of this sanction when the other four factors weigh in its favor.” Rio Props., Inc. v. 17 Rio Int’l Interlink, 284 F.3d 1007, 1022 (9th Cir. 2002). The Court concludes that 18 dismissal of this action for failure to prosecute and to comply with Court orders is 19 warranted, but, consistent with Rule 41(b) and this Court’s exercise of its 20 discretion, the dismissal is without prejudice. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 | IV. CONCLUSION 2 IT THEREFORE IS ORDERED that this lawsuit is DISMISSED without 3 || prejudice. No further filings shall be accepted under this case number. 4 | 5 || DATED: July 17, 2023 6 PERCY ANDERSON

UNITED STATES DISTRICT JUDGE

7 || Presented by: 8

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