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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 JOSE GAETA ZAMBRANO, Case No. 8:21-cv-00994-PA-KES

12 Petitioner,

13 v. ORDER DISM ISSING ACTION FOR

FAILURE TO PROSECUTE

14 SANDRA GATT,

15 Respondent.

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18 I.

19 BACKGROUND

20 In August 2018, Jose Gaeta Zambrano (“Petitioner”) pled guilty in the U.S. 21 District Court for the Southern District of California to one count of importation of 22 methamphetamine. He was sentenced to 84 months (approximately 7 years) in the 23 custody of the federal Bureau of Prisons (“BOP”), to be followed by a 4-year term 24 of supervised release. United States v. Gaeta-Zambrano, No. 3:17-cr-04371 (S.D. 25 Cal. Aug. 28, 2018) (judgment at Dkt. 34). 26 In June 2021, Petitioner filed a pro se petition in this action under 28 U.S.C. 27 § 2241. (“Petition” at Dkt. 1.) The Court dismissed the initial Petition with leave 28 1 to amend, finding that: (a) this Court lacks jurisdiction over the request for a 2 sentence reduction under 18 U.S.C. § 3582(c), as such relief must be sought from 3 the sentencing court; (b) the challenge to the conditions of Petitioner’s confinement 4 should be raised in a civil rights complaint under 42 U.S.C. § 1983 rather than in a 5 habeas petition; (c) the Petition did not include enough facts about the prison 6 disciplinary proceedings it sought to challenge on due process grounds; and (d) the 7 Petition alleged that the BOP had incorrectly calculated his time credits but did not 8 adequately explain how. (Dkt. 3.) 9 Petitioner timely filed a First Amended Petition (“FAP” at Dkt. 4). The 10 Court directed Respondent to file a response to the Petition, which the Court 11 construed as raising the following four claims: 12 Ground 1: Petitioner’s sentence should be reduced because the 13 “harsh prison conditions that are a direct result of the COVID-19 14 pandemic” were “not envisioned at the time of [his] sentencing.” 15 (FAP at 1; see also Pet. at 6.) 16 Ground 2: The conditions of Petitioner’s confinement violate 17 his due process rights because he is not being allowed “a regular 18 exercise period; access to dental treatment; and to use [his] 19 commissary funds to pay financial obligations to include court filing 20 fees, opening a savings account, or assisting [his] family.” (Id. at 1-2; 21 see also Pet. at 3.) 22 Ground 3: Petitioner’s due process rights were violated when he 23 was transferred from home confinement to the Santa Ana Jail, after 24 “officials at the Rubidoux halfway house in Riverside, CA” conducted 25 a urine test and found he had consumed alcohol. (FAP at 2; see also 26 Pet. at 6.) Petitioner argues he should have been given “a DHO 27 hearing” before being transferred, at which he would have explained 28 that his consumption of alcohol was unintentional. (FAP at 2.) 1 Petitioner argues he may raise this issue in a § 2241 petition because 2 “[g]oing from home confinement to conventional incarceration was a 3 ‘quantum’ change in how [his] sentence is being carried out....” (Id.) 4 Ground 4: Petitioner’s release date is incorrect because [BOP] 5 officials have not given him good time credits or earned time credits 6 to which he is entitled under the First Step Act. (Id.; see also Pet. at 7 6.) 8 (Dkt. 5.) 9 On August 13, 2021, Respondent filed a motion to dismiss the FAP, arguing 10 that: (1) “Petitioner’s challenge to the legality of his current sentence is not properly 11 brought under 28 U.S.C. § 2241 – Petitioner should file a petition under 28 U.S.C. 12 § 2255 in the jurisdiction of his conviction to attack the legality of the sentence 13 imposed”; and (2) “Petitioner has failed to properly and timely exhaust the 14 administrative remedy process” because he “has not submitted any administrative 15 grievances while in BOP custody.” (Dkt. 11 at 3, 6.) 16 Petitioner’s response to the motion was initially due by September 2, 2021. 17 (Dkt. 5 at 3 ¶ 4.) The Court later extended this deadline to September 20, 2021, 18 after it appeared that Petitioner had not received certain court filings due to a 19 transfer to USP Lompoc. (Dkt. 13.) 20 On October 6, 2021, having received no response from Petitioner, the Court 21 extended the response deadline to November 5, 2021. (Dkt. 14.) The Court warned 22 Petitioner that if he failed to timely respond, the Court might grant the motion to 23 dismiss as unopposed or dismiss the action for lack of prosecution and/or failure to 24 obey court orders. (Id. at 2.) As of the date of this order, the Court has not received 25 any response from Petitioner. 26 II. 27 LEGAL STANDARD 28 A district court may dismiss an action for failure to prosecute, failure to 1 follow court orders, or failure to comply with the federal or local rules. See Fed. 2 R. Civ. P. 41(b); Link v. Wabash R. Co., 370 U.S. 626, 629-30 (1962); Ghazali v. 3 Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). 4 Central District of California Local Rule 41-1 provides, “Civil suits which 5 have been pending for an unreasonable period of time without any action having 6 been taken therein may, after notice, be dismissed for want of prosecution.”1 7 In determining whether to dismiss a case for failure to prosecute or failure to 8 comply with court orders, the Ninth Circuit has instructed district courts to consider 9 the following five factors: (1) the public’s interest in expeditious resolution of 10 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 11 defendants; (4) the availability of less drastic sanctions; and (5) the public policy 12 favoring disposition of cases on their merits. In re Phenylpropanolamine (PPA) 13 Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006). The test is not 14 “mechanical,” but provides a “non-exhaustive list of things” to “think about.” 15 Valley Eng’rs v. Elec. Eng’g Co., 158 F.3d 1051, 1057 (9th Cir. 1998). 16 III. 17 DISCUSSION 18 Here, the first two factors favor dismissal. The first factor—the public’s 19 interest in the expeditious resolution of litigation—“always favors dismissal.” 20 Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). 21 The second factor—the Court’s need to manage its docket—favors dismissal 22 here because Petitioner’s “noncompliance has caused [this] action to come to a 23 complete halt, thereby allowing [him] to control the pace of the docket rather than 24 the Court.” Id. (internal quotations marks omitted). 25 The third factor—prejudice to Respondent—favors dismissal. A rebuttable 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 presumption of prejudice to the respondent arises when a petitioner unreasonably 2 delays prosecution of an action, In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994), 3 and unnecessary delay “inherently increases the risk that witnesses’ memories will 4 fade and evidence will become stale.” Pagtalunan v. Galaza, 291 F.3d 639, 643 5 (9th Cir. 2002). Nothing suggests that such a presumption is unwarranted in this 6 case. 7 The fourth factor—availability of less drastic sanctions—favors dismissal. 8 The Court’s prior orders warned Petitioner that failure to respond might result in a 9 dismissal of this action. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 10 1992) (“a district court’s warning to a party that his failure to obey the court’s 11 order will result in dismissal can satisfy the ‘consideration of alternatives’ 12 requirement”) (citation omitted). 13 The fifth factor—public policy favoring a disposition of an action on its 14 merits—arguably weighs against dismissal here. Pagtalunan v. Galaza, 291 F.3d 15 639, 643 (9th Cir. 2002). However, the effect of this factor is somewhat mitigated 16 by the fact that some or all of the claims in the Petition appear to be subject to 17 dismissal, for the reasons discussed in Respondent’s motion to dismiss (Dkt. 11) 18 and the Court’s order dismissing the initial Petition with leave to amend (Dkt. 3). 19 Given that the enumerated factors largely support dismissal, this action shall 20 be dismissed pursuant to Rule 41(b) and Local Rule 41-1. The Court has discretion 21 to dismiss an action under Rule 41(b) with or without prejudice. See Fed. R. Civ. 22 P. 41(b) (“[u]nless the dismissal order states otherwise,” a dismissal pursuant to 23 Federal Rule of Civil Procedure 41(b) operates as an adjudication on the merits 24 absent exceptions that are not relevant here); Local Rule 41-2 (“[u]nless the Court 25 provides otherwise, any dismissal pursuant to [Local Rule] 41-1 shall be without 26 prejudice”); Al-Torki v. Kaempen, 78 F.3d 1381, 1385 (9th Cir. 1996). 27 Considering all of the circumstances, the action shall be dismissed in its entirety 28 without prejudice. 1 IV. 2 CONCLUSION 3 IT IS THEREFORE ORDERED that Judgment shall be entered dismissing 4 | the First Amended Petition and this action without prejudice for failure to 5 | prosecute. 6 | Ge 7 | DATED: December 3, 2021 g PERCY ANDERSON 9 UNITED STATES DISTRICT JUDGE

10 | Presented by: "| HawsE Seat 12 | KAREN E. SCOTT 13 | UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28