1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 FLOYD EUGENE BENDER, JR., Case No. 2:21-cv-03310-MWF-MAA 12 Petitioner, ORDER DISMISSING PETITION

AND DISMISSING ACTION

13 v.

WITHOUT PREJUDICE

14 CA INSTITUTION FOR MEN, et al., 15 Respondents. 16 17 18 I. INTRODUCTION AND BACKGROUND 19 On April 6, 2021, the Court received and filed Petitioner Floyd Eugene 20 Bender, Jr.’s (“Petitioner”) pro se filing entitled “Notice: Motion to Grant Judgment 21 for Failure to Respond to Emergency Complaint (Acquiescence),” which the Court 22 construed as a Petition for a Writ of Habeas Corpus by a Person in State Custody 23 pursuant to 28 U.S.C. § 2254 (“Petition”). (Pet., ECF No. 1.) Petitioner alleged 24 that on March 22, 2021, he filed an institutional complaint, or “emergency 25 grievance,” seeking his release from confinement at the California Institution for 26 Men because he was “incarcerat[ed] for extra days and hours without any consent 27 28 1 nor probable cause.” (Id. at 1–2, 5.)1 Petitioner appeared to seek damages based on 2 his continued confinement and the institution’s failure to respond to this grievance. 3 (Id. at 2–3.) 4 On April 20, 2021, in response to the filing of the Petition, the Court ordered 5 Petitioner (1) to file an amended petition incorporating a completed Form CV-69, 6 this District’s form for habeas petitions by individuals in state custody; (2) to either 7 pay the $5 filing fee or to file a completed application for leave to proceed in forma 8 pauperis; and (3) to show cause why the Petition should not be dismissed for failure 9 to state a cognizable habeas claim (“April 20 Order”). (Apr. 20, 2021 Order, ECF 10 No. 3.) Although the Court’s April 20 Order required Petitioner to respond by no 11 later than May 20, 2021 (see id.), the April 20 Order later was returned as 12 undeliverable (ECF No. 4). On May 10, 2021, the Court re-sent the April 20 Order 13 to Petitioner’s corrected address and extended the deadline to respond until June 9, 14 2021. (ECF No. 5.) 15 On July 28, 2021, in the absence of any correspondence from Petitioner, the 16 Court issued an Order to Show Cause why the Petition should not be dismissed for 17 failure to prosecute and failure to comply with a court order pursuant to Federal 18 Rule of Civil Procedure 41 based on Petitioner’s failure to comply with the Court’s 19 orders (“July 28 OSC”). (July 28, 2021 OSC, ECF No. 6.) The Court ordered 20 Petitioner to respond by August 27, 2021 and warned that failure to do so would 21 result in dismissal. (Id. at 2.) 22 On August 24, 2021, the Court took judicial notice of an August 23, 2021 23 order updating Petitioner’s address in another pending case (“August 24 Order”). 24 (Aug. 24, 2021 Order, ECF No. 7, at 2.) Although the Court’s July 28 OSC was 25 not returned to sender, out of an abundance of caution, the Court sent courtesy 26 copies of the April 20 Order and July 28 OSC to Petitioner’s updated address and 27 1 Pinpoint citations in this Order refer to the page numbers appearing in the ECF- 28 generated headers of the Petition. 1 extended Petitioner’s deadline to respond to the July 28 OSC until September 23, 2 2021. (Id. at 2–3.) The Court again warned Petitioner that failure to respond to the 3 July 28 OSC by September 23, 2021 would result in dismissal. (Id. at 3.) 4 To date, Petitioner has not responded to the Court’s April 20 Order or July 28 5 OSC. 6 7 II. ANALYSIS 8 A. Legal Standard 9 District courts may dismiss cases sua sponte for failure to prosecute or for 10 failure to comply with a court order under Federal Rule of Civil Procedure 41(b). 11 Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005); 12 see also Link v. Wabash R.R. Co., 370 U.S. 626, 629–30 (1962) (holding that federal 13 district courts have “inherent power” to dismiss cases sua sponte for lack of 14 prosecution). Dismissal, however, “is a harsh penalty and is to be imposed only in 15 extreme circumstances.” Allen v. Bayer Corp. (In re: Phenylpropanolamine (PPA) 16 Prods. Liab. Litig.), 460 F.3d 1217, 1226 (9th Cir. 2006) (quoting Malone v. U.S. 17 Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)). “A Rule 41(b) dismissal must be 18 supported by a showing of unreasonable delay.” Omstead v. Dell, 594 F.3d 1081, 19 1084 (9th Cir. 2010) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 20 1986)) (internal quotation marks omitted). 21 Before dismissing an action for failure to prosecute or for failure to comply 22 with a court order, a district court must weigh five factors: “(1) the public’s interest 23 in expeditious resolution of litigation; (2) the court’s need to manage its docket; 24 (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic 25 alternatives; and (5) the public policy favoring disposition of cases on their merits.” 26 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). The Ninth Circuit will 27 “affirm a dismissal where at least four factors support dismissal, or where at least 28 three factors strongly support dismissal.” Dreith v. Nu Image, Inc., 648 F.3d 779, 1 788 (9th Cir. 2011) (quoting Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 2 1999)). 3 B. The Factors Support Dismissal. 4 1. The Public’s Interest in Expeditious Resolution and the Court’s 5 Need to Manage its Docket 6 The first and second factors—the public’s interest in expeditious resolution 7 of litigation and the Court’s need to manage its docket—generally are considered 8 together. See Prods. Liab. Litig., 460 F.3d at 1227; Moneymaker v. CoBen (In re 9 Eisen), 31 F.3d 1447, 1452 (9th Cir. 1994) (The first two factors are usually 10 reviewed together “to determine if there is an unreasonable delay.”). 11 Here, these factors weigh in favor of dismissal. “Orderly and expeditious 12 resolution of disputes is of great importance to the rule of law.” Prods. Liab. Litig., 13 460 F.3d at 1227. Thus, “[t]he public’s interest in expeditious resolution of 14 litigation always favors dismissal.” Pagtalunan, 291 F.3d at 642 (quoting Yourish, 15 191 F.3d at 990). In addition, district courts “have an inherent power to control their 16 dockets,” Prods. Liab. Litig., 460 F.3d at 1227 (quoting Thompson v. Hous. Auth. of 17 City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986)), and “are best suited to 18 determine when delay in a particular case interferes with docket management and 19 the public interest.” Yourish, 191 F.3d at 990 (quoting Ash v. Cvetkov, 739 F.2d 20 493, 496 (9th Cir. 1984)). 21 To date, Petitioner has not complied with the Court’s orders to submit an 22 amended petition using Form CV-69, to either pay the $5 filing fee or submit a 23 request to proceed in forma pauperis, or to show cause why his Petition states a 24 cognizable habeas claim. Indeed, he has not filed any response to the Court’s 25 April 20 Order or July 28 OSC. 26 The Court concludes that Petitioner’s failure to comply with these Court 27 orders and failure to prosecute the lawsuit constitute unreasonable delay. See 28 Thomas v. Maricopa Cnty. Jail, 265 Fed. App’x 606, 607 (9th Cir. 2008) (holding 1 that district court did not abuse its discretion by dismissing pro se prisoner lawsuit 2 for failure to respond to a court order for almost three months). Petitioner’s 3 noncompliance and inaction also interfere with the public’s interest in the 4 expeditious resolution of this litigation and hinder the Court’s ability to manage its 5 docket. See Prods. Liab. Litig., 460 F.3d at 1227 (“[The Ninth Circuit] defer[s] to 6 the district court’s judgment about when a delay becomes unreasonable ‘because 7 it is in the best position to determine what period of delay can be endured before 8 its docket becomes unmanageable.’” (quoting Moneymaker v. CoBen (In re 9 Eisen), 31 F.3d 1447, 1451 (9th Cir. 1994))). For these reasons, the first and 10 second factors favor dismissal. 11 12 2. Risk of Prejudice to Respondents 13 The third factor also supports dismissal without prejudice. The risk of 14 prejudice to a respondent is related to a petitioner’s reason for failure to prosecute an 15 action, even in cases such as this in which the respondents have not yet been ordered 16 to respond to a habeas corpus petition. See Pagtalunan, 291 F.3d at 642. Here, 17 Petitioner has offered no reason for failing to respond to the Court’s April 20 Order 18 or July 28 OSC. The absence of any reason indicates sufficient prejudice to 19 Respondents. See Yourish, 191 F.3d at 991–92 (holding that a paltry excuse for 20 default indicates sufficient prejudice to the defendants); see also Laurino v. Syringa 21 Gen. Hosp., 279 F.3d 750, 753 (9th Cir. 2002) (holding that “a presumption of 22 prejudice arises from a plaintiff’s unexplained failure to prosecute”). 23 24 3. Availability of Less Drastic Alternatives 25 The fourth factor also supports dismissal without prejudice. “Warning that 26 failure to obey a court order will result in dismissal can itself meet the 27 ‘consideration of alternatives’ requirement.” Prods. Liab. Litig., 460 F.3d at 1229 28 (citing, inter alia, Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1991) 1 (“Moreover, our decisions also suggest that a district court’s warning to a party 2 that his failure to obey the court’s order will result in dismissal can satisfy the 3 ‘consideration of alternatives’ requirement.”)). Here, rather than dismissing the 4 Petition when Petitioner failed to respond to the April 20 Order, the Court issued 5 the July 28 OSC, warning Petitioner that the Petition would be dismissed if he did 6 not respond. (July 28 OSC at 2.) Petitioner failed to file a response. 7 8 4. Public Policy Favoring Disposition of Cases on Their Merits 9 The fifth factor weighs against dismissal. “We have often said that the 10 public policy favoring disposition of cases on their merits strongly counsels 11 against dismissal.” Prods. Liab. Litig., 460 F.3d at 1228 (citing Hernandez, 138 12 F.3d at 399). On the other hand, “this factor ‘lends little support’ to a party whose 13 responsibility it is to move a case toward disposition on the merits but whose 14 conduct impedes progress in that direction.” Id. (citations omitted). Thus, this 15 factor alone does not preclude dismissal. 16 17 C. Dismissal of this Action is Appropriate. 18 As discussed above, Petitioner’s failure to comply with Court orders and 19 failure to prosecute this action constitute unreasonable delay. In addition, four of the 20 dismissal factors weigh in favor of dismissal, whereas only one factor weighs 21 against dismissal. “While the public policy favoring disposition of cases on their 22 merits weighs against [dismissal], that single factor is not enough to preclude 23 imposition of this sanction when the other four factors weigh in its favor.” Rio 24 Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1022 (9th Cir. 2002). 25 The Court concludes that dismissal of this action for failure to comply with 26 Court orders and failure to prosecute is warranted. However, consistent with Rule 27 41(b) and this Court’s exercise of its discretion, the dismissal should be without 28 prejudice. 1 | I. CONCLUSION 2 Accordingly, IT IS HEREBY ORDERED that (1) the Petition is 3 || DISMISSED for failure to comply with court orders and failure to prosecute, and 4 || (2) the Clerk is directed to enter judgment dismissing this action without prejudice. 5 6] IV. CERTIFICATE OF APPEALABILITY 7 Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the 8 || United States District Courts, the Court “must issue or deny a certificate of 9 || appealability when it enters a final order adverse to the applicant.” The Court has 10 || considered whether a certificate of appealability is warranted. See 28 U.S.C. 11 || § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). The Court 12 || concludes that a certificate of appealability is not warranted; thus, a certificate of 13 || appealability is DENIED. 14 15 || DATED: November 29, 2021 16 Ay Z

17 ICHAEL W. FITZ dD / 18 UNITED STATES DISTRICT JUDGE 19 Presented by: 20 21 □ 22 cays ———— 74 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28