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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

10 11 DEAN HIMBLER AVILES, ) Case No. CV 20-2621-JGB (JPR) ) 12 Plaintiff, ) ) ORDER DISMISSING ACTION FOR 13 v. ) FAILURE TO PROSECUTE, FAILURE TO ) OBEY COURT ORDERS, AND FAILURE TO 14 JASON UR et al., ) STATE A CLAIM ) 15 Defendants. ) ) 16 17 On March 19, 2020, Plaintiff filed a civil-rights action 18 under 42 U.S.C. § 1983. He was subsequently granted leave to 19 proceed in forma pauperis. On April 13, June 2, and July 23, 20 2020, the Court dismissed his complaint, a First Amended 21 Complaint, and a Second Amended Complaint, respectively, with 22 leave to amend because he had failed to state a claim in any of 23 them. In each of the dismissal orders, Plaintiff was warned that 24 failure to file a timely amended complaint could result in his 25 lawsuit being dismissed. In the most recent order, he was 26 advised that the lawsuit would “likely” be dismissed if he did 27 not comply with the court’s orders because he had “already been 28 given numerous opportunities to cure the deficiencies in his 1 1 claims and ha[d] repeatedly disregarded the Court’s instructions 2 on how to remedy them.” 3 Plaintiff’s most recent deadline to file an amended 4 complaint was August 20. He has neither done that nor requested 5 an extension of time to do so. Carey v. King, 856 F.2d 1439, 6 1440-41 (9th Cir. 1988) (per curiam), examined when it is 7 appropriate to dismiss a pro se plaintiff’s lawsuit for failure 8 to prosecute. See also Link v. Wabash R.R., 370 U.S. 626, 629-30 9 (1962) (“The power to invoke [dismissal] is necessary in order to 10 prevent undue delays in the disposition of pending cases and to 11 avoid congestion in the calendars of the District Courts.”). A 12 court must consider “(1) the public’s interest in expeditious 13 resolution of litigation; (2) the court’s need to manage its 14 docket; (3) the risk of prejudice to the defendants; (4) the 15 public policy favoring disposition of cases on their merits[;] 16 and (5) the availability of less drastic sanctions.” Carey, 856 17 F.2d at 1440 (citation omitted). Unreasonable delay creates a 18 rebuttable presumption of prejudice to the defendants that can be 19 overcome only with an affirmative showing of just cause by the 20 plaintiff. See In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 21 1994). 22 Here, the first, second, third, and fifth Carey factors 23 militate in favor of dismissal. In particular, Plaintiff has 24 offered no explanation for his failure to file a third amended 25 complaint. Thus, he has not rebutted the presumption of 26 prejudice to Defendants. No less drastic sanction is available, 27 as all of Plaintiff’s complaints fail to state a claim and cannot 28 be ordered served, and he is unable or unwilling to comply with 2 1 |} the Court’s instructions for fixing them. Indeed, some of his 2 || complaints have bordered on frivolous, purporting to proceed on 3 | criminal-law or False Claims Act theories. Because none of Plaintiff’s claims can be ordered served, the Court is unable to 5 manage its docket. Although the fourth Carey factor weighs 6 || against dismissal — as it always does — together the other 7 || factors outweigh the public’s interest in disposing of the case its merits. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261-62 (9th Cir. 1992) (as amended) (upholding dismissal of pro se 10 |] civil-rights action for failure to timely file amended complaint 11 || remedying deficiencies in caption); Baskett v. Quinn, 225 F. 12 |] Aop’x 639, 640 (9th Cir. 2007) (upholding dismissal of pro se 13 | civil-rights action for failure to state claim or timely file 14 |] amended complaint). 15 ORDER 16 Accordingly, this action is dismissed for failure to 17 | prosecute, failure to obey court orders, and for the reasons 18 |] stated in the Court’s April 13, June 2, and July 23, 2020 orders. 19 LET JUDGMENT BE ENTERED ACCORDINGLY. 20 21 || DATED: _August 28, 2020 L .

JESYG G. BERNAL

22 U.SL/DISTRICT JUDGE 23 24 | Presented by: 95 frm brenblate Jean P. Rosenbluth Magistrate Judge 27 28