Lewis v. R.J. Donovan ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KENNETH LEWIS, Case No. 21-cv-1266-BAS-KSC 12 Petitioner, ORDER DISMISSING ACTION 13 v. 14 R.J. DONOVAN, 15 Respondent. 16 17 On October 19, 2021, this Court ordered Petitioner Kenneth Lewis to show cause by 18 no later than November 29, 2021 as to why this action should not be dismissed for his 19 failure to either pay the $5.00 filing fee or submit a motion to proceed in forma pauperis 20 (“IFP”). (Order to Show Cause (“OSC”), ECF No. 4.) This Court had previously informed 21 Petitioner on July 30, 2021 of his noncompliance with 28 U.S.C. § 1914(a) (requiring filing 22 fee of $5.00 in connection with applications for writ of habeas corpus) and 28 U.S.C. 23 1915(a) (requiring petitioners who cannot make prepayment of fees or security to submit 24 affidavit including statement of assets), when it dismissed without prejudice Petitioner’s 25 initial Petition for his failure to name a proper respondent, to adequately allege exhaustion 26 of state remedies, to state a cognizable claim, and to affix his signature to the initial 27 Petition. (Order, ECF No. 2.) The Order to Show Cause directed Petitioner that he could 28 show cause by either paying the filing fee or moving to proceed IFP. Moreover, it warned 1 that failure to do so would result in dismissal. (Id.) Petitioner’s deadline to show cause 2 has come and gone, yet Petitioner still has not responded. 3 A district court may dismiss a plaintiff’s action for his failure to prosecute or failure 4 to comply with court orders. See Fed. R. Civ. P. 41(b); Pagtalunan v. Galaza, 291 F.3d 5 639, 642 (9th Cir. 2002); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (holding 6 that a district court may dismiss an action for failure to comply with any order of the court). 7 “Dismissals under Rule 41(b) . . . operate as adjudications on the merits unless the court 8 specifies otherwise.” Costello v. United States, 365 U.S. 265, 285 (1961). 9 Before dismissing the action under Rule 41(b), the court must consider: 10 (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 defendants; (4) the 11 availability of less drastic alternatives; and (5) the public policy favoring 12 disposition of cases on their merits. 13 14 Pagtalunan, 291 F.3d at 642. 15 On balance, these factors decisively favor dismissal. The first and second factors 16 favor dismissal because nearly nearly five months have passed since the Court first notified 17 Petitioner of, and directed Petitioner to cure, the procedural defects in his action (see ECF 18 No. 2), and nearly one month has passed since the Court ordered Petitioner to show cause 19 why this action should not be dismissed because of those procedural defects. See Buckelew 20 v. Gore, No. 20-CV-00835-BAS-AGS, 2020 WL 8642149, at *1 (S.D. Cal. Nov. 12, 2020). 21 Nevertheless, Petitioner ignored repeatedly ignored this Court’s orders. The fourth factor 22 also favors dismissal. If Petitioner seeks to proceed in forma pauperis as his failure to pay 23 the filing fee suggests, the imposition of monetary sanctions would be “inappropriate and 24 likely ineffective” and “would not remedy Plaintiff’s lack of participation.” Johnson v. 25 Pamplin, No. 17-CV-00560-BAS-BLM, 2019 WL 494630, at *3 (S.D. Cal. Feb. 8, 2019). 26 Moreover, this Court already sought, unsuccessfully, a less drastic remedy by ordering 27 Petitioner to show cause why his action should avoid dismissal. See Ferdik, 963 F.2d at 28 1262 (holding that “a court’s warning to a party that his failure to obey the court’s order 1 |} will result in dismissal can satisfy the ‘consideration of alternatives’ requirement’). 2 || Because Petitioner has not complied with the Order to Show Cause, the Court finds that 3 ||more attempts of less drastic alternatives would be futile. The third factor is neutral at this 4 |learly stage of the litigation. C.f/ Ferdik, 963 F.2d at 1262 (“Without knowing who the 5 defendants are . . . [the court is] hard pressed to determine how [the plaintiffs] failure to 6 ||amend put them at a disadvantage.) The fifth factor weighs against dismissal, but that 7 || factor is eclipsed by the first, second, and fourth factors, which all heavily favor dismissal. 8 Dismissal of this action is warranted for Petitioners’ repeated failures to comply with 9 |}court orders. Therefore, the Court DISMISSES WITHOUT PREJUDICE this action. 10 || The Clerk of Court is directed to close this action. 11 IT IS SO ORDERED. 12 ) 13 | DATED: December 21, 2021 Lin A (Lyphaa. 6 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28