1 , 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 DANNY VARNER, ) Case No. CV 20-8732-GW (JPR) 11 ) Petitioner, ) 12 ) ORDER SUMMARILY DISMISSING v. ) PETITION FOR WRIT OF HABEAS 13 ) CORPUS

FELICIA PONCE, )

14 ) Respondent. ) 15 ) ) 16 17 On September 17, 2020, Danny Varner, a prisoner at Terminal 18 Island Federal Correctional Institution, filed what he styled as 19 a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241. 20 Because he exclusively raised claims concerning his medical 21 treatment while incarcerated and did not challenge his underlying 22 conviction or sentence, the Magistrate Judge on October 2 23 dismissed the Petition with leave to amend, instructing him, as 24 was explained to him in his earlier case, Varner v. Warden, CV 25 20-5328-GW (JPR) (C.D. Cal. dismissed Sept. 10, 2020), that such 26 claims must be brought in a civil-rights lawsuit under Bivens v. 27 Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 28 388 (1971). The Magistrate Judge directed the Clerk to provide 1 1 Petitioner with a civil-rights form to use to raise his 2 inadequate-medical-care claims. She warned him that if he did 3 not timely file a civil-rights complaint within 30 days, this 4 action would likely be dismissed for failure to prosecute and 5 failure to obey a court order. To date he has not responded to 6 the Magistrate Judge’s order in any way. 7 Courts may dismiss lawsuits that are not diligently 8 prosecuted. Link v. Wabash R.R., 370 U.S. 626, 629-30 (1962); 9 Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988) (per curiam). 10 In determining whether to dismiss a pro se petitioner’s action 11 for failure to prosecute, a court must consider (1) the public’s 12 interest in expeditious resolution of litigation, (2) the court’s 13 need to manage its docket, (3) the risk of prejudice to the 14 respondent, (4) the public policy favoring disposition of cases 15 on their merits, and (5) the availability of less drastic 16 sanctions. Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 17 2002). Unreasonable delay creates a rebuttable presumption of 18 prejudice to the opposing party that can be overcome only with an 19 affirmative showing of just cause. In re Eisen, 31 F.3d 1447, 20 1452-53 (9th Cir. 1994). 21 Here, the first, second, third, and fifth factors 22 militate in favor of dismissal. The Court cannot simply leave 23 hanging on its docket a case without a viable initial pleading. 24 See, e.g., Hernandez v. Paramo, No. CV 15-5351-RSWL (DFM), 2016 25 WL 1430002, at *1-2 (C.D. Cal. Apr. 11, 2016) (dismissing without 26 prejudice lawsuit that was mix of habeas and civil-rights claims 27 when petitioner failed to file amended pleading or request 28 extension of time). And Petitioner has not rebutted the 2 1 | presumption of prejudice to Respondent caused by his unreasonable 2 |} delay. 3 Finally, there does not appear to be any less drastic 4]||/sanction to take, as Petitioner has not availed himself of the 5 | opportunity to amend his pleading even after being expressly 6 |} warned that if he didn’t his case might be dismissed. To the 7} extent the prior dismissal with leave to amend does not 8 constitute a “sanction,” see Pagtalunan, 291 F.3d at 643, dismissal without prejudice is a less drastic sanction than with 10 |] prejudice, which is authorized when a party has failed to 11 |] diligently prosecute, see id. at 642-43 (affirming dismissal of 12 | habeas petition with prejudice for failure to diligently 13 |} prosecute). Although the fourth factor weighs against dismissal as it always does — the other factors together outweigh the 15 |} public’s interest in disposing of the case on its merits. 16 Accordingly, this action is dismissed without prejudice for 17 reasons stated herein and in the Magistrate Judge’s October 18 2020 order. Aang Hy We 50 DATED: December 7, 2020 _ RO

U.S. DISTRICT JUDGE

21 |} Presented by: fim Frendta~ Jean Rosenbluth 23 Magistrate Judge 24 25 26 27 28