United States District Court, C.D. California
ORDER DISMISSING ACTION WITHOUT PREJUDICE FOR FAILURE
TO PROSECUTE AND TO COMPLY WITH COURT ORDERS
JESUS G. BERNAL UNITED STATES DISTRICT JUDGE
April 11, 2019, Petitioner Jasper Eric Lee Jones
(“Petitioner”) constructively filed an
application in the Ninth Circuit for authorization to file a
second or successive 28 U.S.C. § 2254 habeas corpus
petition in the district court. (See Dkts. 1, 2.)
The Ninth Circuit denied Petitioner's application,
because he “has not filed a first habeas petition
challenging his Los Angeles County conviction for voluntary
manslaughter, ” and transferred the application to this
Court for processing as a habeas petition pursuant to 28
U.S.C. § 2254. (Dkt. 2.) The operative Petition (Dkt. 1
[the “Petition”]) is the application filed before
the Ninth Circuit in April.
29, 2019, the Court dismissed the Petition with leave to
amend, instructing Petitioner to include in his First Amended
Petition (“FAP”) facts supporting the grounds
asserted in the Petition by August 27, 2019. (Dkt. 4.) Having
received no response from Petitioner, on September 12, 2019,
the Court issued an order to show cause (“OSC”)
requiring Petitioner to file his FAP and either file an
in forma pauperis (“IFP”) application or
pay the $5.00 filing fee by October 1, 2019. (Dkt. 5.)
Petitioner never responded.
well-established that a district court may dismiss an action
for failure to prosecute, failure to follow court orders, or
failure to comply with the federal or local rules.
See Fed.R.Civ.P. 41(b); Link v. Wabash R.
Co., 370 U.S. 626, 629-30 (1962); Ghazali v.
Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam).
Local Rule 41-1 provides that “[c]ivil suits which have
been pending for an unreasonable period of time without any
action having been taken therein may, after notice, be
dismissed for want of prosecution.” L.R. 41-1.
case, Petitioner has failed to comply with Court orders.
Because Petitioner has not filed his FAP or IFP Application
or $5.00 fee, Petitioner has failed to comply with a Court
order. (Dkt. 4.) Petitioner also failed to comply with the
Court's OSC. (Dkt. 5.) In fact, Petitioner has not
submitted any filing to the Court in over six months,
effectively abandoning this action.
determining whether to dismiss a case for failure to
prosecute or failure to comply with court orders, a district
court should consider the following five factors: “(1)
the public's interest in expeditious resolution of
litigation; (2) the court's need to manage its docket;
(3) the risk of prejudice to the defendants; (4) the public
policy favoring disposition of cases on their merits; and (5)
the availability of less drastic sanctions.” In re
Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d
1217, 1226 (9th Cir. 2006) (quoting Malone v. U.S. Postal
Serv., 833 F.2d 128, 130 (9th Cir. 1987)). The test is
not “mechanical, ” but provides a
“non-exhaustive list of things” to “think
about.” Valley Eng'rs v. Elec. Eng'g
Co., 158 F.3d 1051, 1057 (9th Cir. 1998).
the five factors support dismissal of Petitioner's action
based on failure to prosecute this case and to comply with
Court orders. The first factor-the public's interest in
the expeditious resolution of litigation-“always favors
dismissal.” Yourish v. Cal. Amplifier, 191
F.3d 983, 990 (9th Cir. 1999).
second factor-the Court's need to manage its docket-also
supports dismissal. Petitioner's “noncompliance has
caused the action to come to a complete halt, thereby
allowing [him] to control the pace of the docket rather than
the Court.” Id. This action has been pending
since April, but Petitioner has stopped responding.
Petitioner has disregarded two Court orders. Petitioner's
inaction frustrates the public's interest in the
expeditious resolution of litigation and the Court's need
to manage its docket. It is Petitioner's responsibility
to move his action toward a disposition at a reasonable pace,
while avoiding dilatory and evasive tactics. Morris v.
Morgan Stanley, 942 F.2d 648, 652 (9th Cir. 1991).
third factor-prejudice to Defendant-supports dismissal.
“[T]he failure to prosecute diligently is sufficient by
itself to justify a dismissal, even in the absence of a
showing of actual prejudice to the defendant from the failure
… The law presumes injury from unreasonable
delay.” Southwest Marine, Inc. v. Danzig, 217
F.3d 1128, 1138 (9th Cir. 2000) (citing Moneymaker v.
CoBen (In re Eisen), 31 F.3d 1447, 1452 (9th Cir.
fourth factor-public policy favoring a disposition of an
action on its merits-weighs against dismissal. Pagtalunan