1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ADAM JONATHAN COCCO, Case No. 8:23-cv-00400-GW-PD

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

PROSECUTE

14 COUNTY OF ORANGE, et al. 15 Defendants. 16

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I. Pertinent Procedural History and Plaintiff’s Claims

18 On March 7, 2023, Plaintiff Adam Jonathan Cocco, proceeding pro se, 19 filed a Complaint pursuant to 42 U.S.C. § 1983. [Dkt. No. 1.] The Complaint 20 alleges Plaintiff’s First, Eighth and Fourteenth Amendment rights were 21 violated while he was a pre-trial detainee at the Orange County Men’s 22 Central Jail (“the Jail”). [Id. at 5-6.] Plaintiff also alleges claims under the 23 Religious Freedom Restoration Act (“RFRA”) and Religious Land Use and 24 Institutionalized Persons Act (“RLUIPA”). [Id. at 1-2.] 25 The gravamen of the Complaint is that the Jail denied Plaintiff access 26 to religious materials and denied him a kosher diet. [Id. at 2.] The Complaint 27 consists of 150 pages of rambling statements, exhibits, bible verses, and 28 1 contradictory allegations against 18 defendants. [See id.] For example, 2 Plaintiff states that he is Jewish, but also states that identifying with a 3 denomination would be against his religious beliefs. [See e.g. id. at 7, 13-16.] 4 Similarly, Plaintiff contends that he was denied access to religious materials 5 such as a Gideon or King James Bible and a Torah, but also admits he did 6 receive a Gideon Bible and a Torah on various occasions. [Id. at 11, 15, 17.] 7 Plaintiff complains that the Jail questioned the sincerity of his religious 8 beliefs, but also states that he sometimes requested a Rabbi and sometimes 9 requested a Catholic Priest. [Id. at 6, 8, 48-49.] 10 On April 18, 2023, the Court screened the Complaint pursuant to 28 11 U.S.C. § 1915(e)(2)(B)(ii) and found that it failed to state a cognizable claim 12 against any named defendant, as required by Rule 8 of the Federal Rules of 13 Civil Procedure. [Dkt. No. 5.] The Court dismissed the Complaint with leave 14 to amend and ordered Plaintiff to show cause why the Court should not recommend dismissal for failure to state actionable claims no later than May 15 19, 2023. [Id.] 16 On May 22, 2023, Plaintiff filed a request to extend the deadline to file a 17 first amended complaint due to a medical emergency that prevented Plaintiff 18 from accessing the law library. [Dkt. No. 7.] On May 26, 2023, the Court 19 issued an order extending the deadline to file a first amended complaint to 20 June 26, 2023. [Dkt. No. 8.] The Order stated that absent extraordinary 21 circumstances, no further extensions of time will be granted. 22 To date, Plaintiff has not filed a first amended complaint or otherwise 23 communicated with the Court. Accordingly, the case is now subject to 24 dismissal for failure to prosecute pursuant to Rule 41(b) of the Federal Rules 25 of Civil Procedure and Local Rule 41-6. 26

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28 1 II. Discussion 2 Rule 41(b) grants district courts the authority to sua sponte dismiss 3 actions for failure to prosecute. Link v. Wabash R.R. Co., 370 U.S. 626, 629- 4 30 (1962). In determining whether dismissal for lack of prosecution is 5 warranted, a court must weigh several factors, including: (1) the public’s 6 interest in expeditious resolution of litigation; (2) the court’s need to manage 7 its docket; (3) the risk of prejudice to defendants; (4) the availability of less 8 drastic sanctions; and (5) the public policy favoring the disposition of cases on 9 their merits. Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002); Ferdik 10 v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992). Dismissal is appropriate 11 under the foregoing analysis “where at least four factors support dismissal ... 12 or where at least three factors ‘strongly’ support dismissal.” Hernandez v. 13 City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citations omitted). 14 In this case, the first two factors – public interest in expeditious resolution of litigation and the need to manage the Court’s docket – weigh in 15 favor of dismissal. Plaintiff did not file a first amended complaint on time 16 even after his extension request was granted. Plaintiff’s failure to file an 17 amended complaint—or show good cause for his delay—prevents the Court 18 from moving this case toward disposition and shows that Plaintiff does not 19 intend to litigate this action diligently. 20 Arguably, the third factor – prejudice to Defendants – does not weigh in 21 favor of dismissal because Defendants in this case have not yet been served. 22 However, the Ninth Circuit has held that prejudice may be presumed from 23 unreasonable delay. See In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994); 24 Moore v. Teflon Commc’ns. Corp., 589 F.2d 959, 967-68 (9th Cir. 1978). 25 Plaintiff’s inaction in this matter is an unreasonable delay. In the absence of 26 any explanation, non-frivolous or otherwise, for Plaintiff’s delay, the Court 27 presumes prejudice. See Laurino v. Syringa Gen. Hosp., 279 F.3d 750, 753 28 1 (9th Cir. 2002) (presumption of prejudice can be rebutted by a non-frivolous 2 explanation); Pagtalunan, 291 F.3d at 642 (citing Yourish v. California 3 Amplifier, 191 F.3d 983, 991 (9th Cir. 1999)). 4 The fourth factor – the availability of less drastic sanctions – ordinarily 5 counsels against dismissal. However, the Court attempted to avoid outright 6 dismissal by giving Plaintiff ample time to communicate with the Court and 7 file an amended complaint. Plaintiff was also expressly warned that failure to 8 comply with the Court’s orders could result in dismissal. [Dkt. No. 8.] Thus, 9 the Court explored the only meaningful alternatives to dismissal in its arsenal 10 and found that they were not effective. See Henderson v. Duncan, 779 F.2d 11 1421, 1424 (9th Cir. 1986) (“The district court need not exhaust every sanction 12 short of dismissal before finally dismissing a case, but must explore possible 13 and meaningful alternatives.”) (citation omitted). 14 The fifth factor – the general policy favoring resolution on the merits – ordinarily weighs against dismissal. Pagtalunan, 291 F.3d at 643. It is, 15 however, the responsibility of the moving party to move the case toward 16 disposition on the merits at a reasonable pace and to refrain from dilatory and 17 evasive tactics. Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 18 1991). Because Plaintiff have failed to diligently participate in their lawsuit, 19 retention of this case would not increase the likelihood of the matter being 20 resolved on its merits. This factor does not weigh in favor of or against 21 dismissal. 22 In sum, four out of the five factors support dismissal. The Court 23 concludes that dismissal for failure to prosecute is warranted. 24

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28 | For the foregoing reasons, this action is dismissed for failure to 2 || prosecute. 3 4] IT IS SO ORDERED. 5 6 || Dated: July 19, 2023 i forge Ve 8 GEORGEH.WU—™ 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28