1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PAGE, Michael, Case No.: 3:22-cv-1664-RBM-BGS

CDCR #D-79552,

12

ORDER DISMISSING COMPLAINT

Plaintiff, 13 FOR FAILING TO STATE A CLAIM vs. PURSUANT TO 28 U.S.C. § 1915(e)(2) 14 & 28 U.S.C. § 1915A(b) AND FOR

15 FAILING TO COMPLY WITH

W.L. MONTGOMERY, COURT ORDER

16 Defendant. 17 18 19 On October 20, 2022, Plaintiff Michael Page, a prisoner confined at Calipatria State 20 Prison (“CAL”) in Calipatria, California, proceeding pro se, filed a civil rights action 21 pursuant to 42 U.S.C. § 1983. (ECF No. 1.) On November 16, 2022, the Court granted 22 Plaintiff leave to proceed in forma pauperis and dismissed the Complaint for failure to state 23 a claim. (ECF No. 5.) 24 Plaintiff was informed of the pleading deficiencies of his Complaint and was granted 25 forty-five (45) days leave to file an amended complaint. (Id. at 6–7.) He was informed 26 that if he failed to timely amend, the Court would enter a final judgment of dismissal based 27 on his failure to state a claim and his failure to prosecute in compliance with the court order 28 requiring amendment. (Id. at 7, citing Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005) 1 (“If a plaintiff does not take advantage of the opportunity to fix his complaint, a district 2 court may convert the dismissal of the complaint into dismissal of the entire action.”)) 3 The deadline to amend has passed and Plaintiff has not filed an amended complaint 4 or sought an extension of time to do so. This Court has discretion to sua sponte dismiss a 5 case for lack of prosecution or failure to comply with a court order. Henderson v. Duncan, 6 779 F.2d 1421, 1423 (9th Cir. 1986); see also Fed. R. Civ. P. 41(b) (providing for 7 involuntary dismissal for failure to prosecute or comply with the federal rules or court 8 order). “The failure of the plaintiff eventually to respond to the court’s ultimatum–either 9 by amending the complaint or by indicating to the court that [he] will not do so–is properly 10 met with the sanction of a Rule 41(b) dismissal.” Edwards v. Marin Park, 356 F.3d 1058, 11 1065 (9th Cir. 2004). 12 “In determining whether to dismiss a claim for failure to prosecute or failure to 13 comply with a court order, the Court must weigh the following factors: (1) the public’s 14 interest in expeditious resolution of litigation; (2) the Court’s need to manage its docket; 15 (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic 16 alternatives; and (5) the public policy favoring disposition of cases on their merits.” 17 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002), citing Ferdik v. Bonzelet, 963 18 F.2d 1258, 1260–61 (9th Cir. 1992). Because the Court has informed Plaintiff of his need 19 to timely amend but he has failed to do so, factors one, two and four weigh in favor of 20 dismissal. See Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (“[T]he 21 public’s interest in expeditious resolution of litigation always favors dismissal.”); 22 Pagtalunan, 291 F.3d at 642 (“The trial judge is in the best position to determine whether 23 the delay in a particular case interferes with docket management and the public interest.”); 24 Nevijel v. North Coast Life Insurance Co., 651 F.2d 671, 674 (9th Cir. 1981) (a court is not 25 required to exhaust all alternatives prior to dismissal). Factor five does not weigh against 26 dismissal. See In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 1217, 1227 27 (9th Cir. 2006) (the public policy favoring disposition on the merits does not weigh against 28 dismissal where plaintiff’s “conduct impedes progress in that direction.”) Only factor three 1 || does not weigh in favor of dismissal. See Pagtalunan, 291 F.3d at 642 (where defendants 2 ||have not appeared, “[w]e have previously recognized that pendency of a lawsuit is not 3 || sufficiently prejudicial in and of itself to warrant dismissal.”) 4 Weighing these factors, the Court finds entry of a final judgment of dismissal is 5 ||appropriate. See Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (“We 6 || may affirm a dismissal where at least four factors support dismissal, or where at least three 7 || factors ‘strongly’ support dismissal.’’) (internal citation omitted), quoting Ferdik, 963 F.2d 8 1263. 9 CONCLUSION AND ORDER 10 The Court DISMISSES this civil action without prejudice based on □□□□□□□□□□□ 11 |/failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. 12 ||§ 1915(e)(2), and for failure to prosecute by failing to file an amended complaint as 13 ||required by the Court’s November 16, 2022, Order. The Court DIRECTS the Clerk of 14 || Court to enter a final judgment of dismissal and close the file. 15 IT IS SO ORDERED. 16 ||DATE: April 24, 2023 petal Matra 18 HON. RUTH BERMUBEZ MONTENEGRO

UNITED STATES DISTRICT JUDGE

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