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5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 PETER ANTHONY CONCEPCION Case No. 2:20-cv-05050-PSG-KES 12 SANTOS, 13 Petitioner, ORDER DIS MISSING ACTION

WITHOUT PREJUDICE FOR

14 v.

FAILURE TO PROSECUTE

15 FELICIA PONCE, Warden, 16 Respondent. 17 18 19 I.

20 BACKGROUND 21 In June 2020, Peter Anthony Concepcion Santos (“Petitioner”) filed a habeas 22 petition under 28 U.S.C. § 2241 challenging his expulsion from the federal Bureau 23 of Prison’s Residential Drug Abuse Program and alleging discrimination on the 24 basis of national origin. (Dkt. 1 [“Petition”].) In July 2020, Respondent moved to 25 dismiss the Petition for lack of jurisdiction. (Dkt. 6.) Petitioner’s response to the 26 motion was due on or before August 5, 2020 (Dkt. 3 at 3 ¶ 4), and he failed to file 27 one. 28 1 On August 27, 2020, the Court ordered Respondent to address certain issues 2 in a supplemental brief in support of the motion. (Dkt. 7.) On September 11, 2020, 3 the copy of this order that the Court sent to Petitioner was returned as 4 undeliverable. (Dkt. 8.) On September 16, 2020, Respondent filed the 5 supplemental brief. (Dkt. 9.) 6 Respondent argues that the Petition is now moot because, on September 3, 7 2020, Petitioner was released from prison and transferred to home confinement in 8 Guam. (Dkt. 9 at 6; Dkt. 9-2 at 3 ¶ 7.) As of the date of this order, the Court has 9 not received an updated mailing address from Petitioner. 10 II. 11 DISCUSSION 12 A. Legal Standard 13 A district court may dismiss an action for failure to prosecute, failure to 14 follow court orders, or failure to comply with the federal or local rules. See Fed. 15 R. Civ. P. 41(b); Link v. Wabash R. Co., 370 U.S. 626, 629-30 (1962); Ghazali v. 16 Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). 17 Central District of California Local Rule 41-1 provides, “Civil suits which 18 have been pending for an unreasonable period of time without any action having 19 been taken therein may, after notice, be dismissed for want of prosecution.”1 Local 20 Rule 41-6 provides: 21 A party proceeding pro se shall keep the Court and opposing parties 22 apprised of such party’s current address and telephone number, if any, 23 and e-mail address, if any. If mail directed by the Clerk to a pro se 24 plaintiff’s address of record is returned undelivered by the Postal 25 Service, and if, within fifteen (15) days of the service date, such 26

27 1 The Local Rules of the U.S. District Court for the Central District of California are available online at: https://www.cacd.uscourts.gov/court-procedures/local-rules. 28 1 plaintiff fails to notify, in writing, the Court and opposing parties of 2 said plaintiff’s current address, the Court may dismiss the action with 3 or without prejudice for want of prosecution. 4 In determining whether to dismiss a case for failure to prosecute or failure to 5 comply with court orders, the Ninth Circuit has instructed district courts to consider 6 the following five factors: (1) the public’s interest in expeditious resolution of 7 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 8 defendants; (4) the availability of less drastic sanctions; and (5) the public policy 9 favoring disposition of cases on their merits. In re Phenylpropanolamine (PPA) 10 Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006). The test is not 11 “mechanical,” but provides a “non-exhaustive list of things” to “think about.” 12 Valley Eng’rs v. Elec. Eng’g Co., 158 F.3d 1051, 1057 (9th Cir. 1998). 13 B. Analysis 14 Here, the first two factors favor dismissal. The first factor—the public’s 15 interest in the expeditious resolution of litigation—“always favors dismissal.” 16 Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). 17 The second factor—the Court’s need to manage its docket—favors dismissal 18 here because Petitioner’s “noncompliance has caused [this] action to come to a 19 complete halt, thereby allowing [him] to control the pace of the docket rather than 20 the Court.” Id. (internal quotations marks omitted). 21 The third factor—prejudice to Respondent—favors dismissal. A rebuttable 22 presumption of prejudice to the respondent arises when a petitioner unreasonably 23 delays prosecution of an action, In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994), 24 and unnecessary delay “inherently increases the risk that witnesses’ memories will 25 fade and evidence will become stale.” Pagtalunan v. Galaza, 291 F.3d 639, 643 26 (9th Cir. 2002). Nothing suggests that such a presumption is unwarranted in this 27 case. 28 The fourth factor—availability of less drastic sanctions—favors dismissal. 1 After Petitioner missed the initial deadline to respond to the motion to dismiss, the 2 Court directed Respondent to file supplemental briefing and gave Petitioner an 3 opportunity to respond to that briefing. (Dkt. 7, 10.) The Court warned Petitioner 4 that failure to respond and/or update his mailing address might result in a dismissal 5 for lack of prosecution. (Dkt. 10 at 2.) See Ferdik v. Bonzelet, 963 F.2d 1258, 6 1262 (9th Cir. 1992) (“a district court’s warning to a party that his failure to obey 7 the court’s order will result in dismissal can satisfy the ‘consideration of 8 alternatives’ requirement”) (citation omitted). 9 The fifth factor—public policy favoring a disposition of an action on its 10 merits—arguably weighs against dismissal here. Pagtalunan v. Galaza, 291 F.3d 11 639, 643 (9th Cir. 2002). However, the effect of this factor is somewhat mitigated 12 by the fact that Petitioner already appears to have been granted the main form of 13 relief sought in the Petition. (See Dkt. 1 at 9 [seeking “immediate release and 14 return to Guam”]; Dkt. 9-1 at 4-5 [Respondent’s supplemental brief in support of 15 motion to dismiss, arguing the Petition is moot because Petitioner has been 16 released to home confinement in Guam].)2 17 Given that the enumerated factors largely support dismissal, this action will 18 be dismissed pursuant to Rule 41(b) and Local Rule 41-1. The Court has discretion 19 to dismiss an action under Rule 41(b) with or without prejudice. See Fed. R. Civ. 20 P. 41(b) (“[u]nless the dismissal order states otherwise,” a dismissal pursuant to 21 Federal Rule of Civil Procedure 41(b) operates as an adjudication on the merits 22 absent exceptions that are not relevant here); Local Rule 41-2 (“[u]nless the Court 23 provides otherwise, any dismissal pursuant to [Local Rule] 41-1 shall be without 24 prejudice”); Al-Torki v. Kaempen, 78 F.3d 1381, 1385 (9th Cir. 1996). 25

26 2 Because the Court is dismissing due to lack of prosecution, it makes no findings 27 as to whether the Petition is moot or Petitioner could have sought other forms of relief. 28 1 | Considering all of the circumstances, the action will be dismissed 1n its entirety 2 | without prejudice. 3 Il. 4 CONCLUSION 5 IT IS THEREFORE ORDERED that Judgment will be entered dismissing 6 | this action without prejudice for failure to prosecute. _ 7 Lb A Ee 8 | DATED: _ 02-05-2021 _ 9 PHILIP S. GUTIERREZ 0 UNITED STATES DISTRICT JUDGE

11 | Presented by: Tica ©. Sest) 13 | KAREN E. SCOTT 14 | United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28