Douglas Lasance v. Warden et al
Filing
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MEMORANDUM AND ORDER DISMISSING CASE by Judge Mark C. Scarsi, IT IS THEREFORE ORDERED THAT Petitioner's case is DISMISSED without prejudice. re Order to Show Cause, 10 , Order to Show Cause, 9 , Complaint (Prisoner Civil Rights) 1 , Order, to Show Cause 8 . [See document for further details.] (es)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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DOUGLAS LASANCE,
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Case No. 2:21-cv-6501-MCS (MAR)
Plaintiff,
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MEMORANDUM AND ORDER
DISMISSING CASE
v.
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WARDEN, ET AL.,
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Defendant.
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I.
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INTRODUCTION
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On August 3, 2021, Douglas Lasance (“Plaintiff”) constructively filed1 a pro se
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Civil Rights Complaint (“Complaint”) pursuant to 42 U.S.C. § 1983 (“section 1983”).
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ECF Docket No. (“Dkt.”) 1. On September 3, 2021, the Court dismissed the
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Complaint with leave to amend (“ODLA”), granting Plaintiff until October 4, 2021 to
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file a First Amended Complaint (“FAC”). Dkt. 8 at 9. To date, Plaintiff has not filed
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a FAC. For the reasons below, the Court DISMISSES this action, without prejudice.
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Under the “mailbox rule”, when a pro se prisoner gives prison authorities a pleading to mail to the
court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v.
Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010); Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir.
2009) (stating the “mailbox rule applies to § 1983 suits filed by pro se prisoners”).
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II.
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BACKGROUND
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On August 3, 2021, Douglas Lasance (“Plaintiff”), proceeding pro se and in
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forma pauperis (“IFP”), constructively filed a Civil Rights Complaint pursuant to
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section 1983 in the Eastern District of California. Dkt. 1. On August 17, 2021, the
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case was transferred to the Central District. Dkt. 3. On September 3, 2021, the Court
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issued an ODLA, granting Plaintiff until October 4, 2021 to file a FAC. Dkt. 8 at 9.
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On October 25, 2021, this Court issued an Order to Show Cause (“OSC”)
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ordering Plaintiff to show by November 15, 2021 why this action should not be
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dismissed for failure to prosecute. Dkt. 9. Plaintiff was warned that “[f]ailure to
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respond to the Court’s Order may result in the dismissal of the action.” Id.
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(emphasis added).
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On November 30, 2021, this Court issued a second OSC ordering Plaintiff to
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respond to the Court’s previous Orders. Dkt. 10. Plaintiff was warned that he “must
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comply…by December 14, 2021, or this action will be dismissed for failure to
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prosecute.” Id. (emphasis in original). Plaintiff has not corresponded with the Court
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at all since he filed the Complaint on August 3, 2021.
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III.
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DISCUSSION
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A.
APPLICABLE LAW
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District courts have sua sponte authority to dismiss actions for failure to
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prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. Wabash
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R.R. Co., 370 U.S. 626, 629–30 (1962); Hells Canyon Pres. Council v. U.S. Forest
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Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating courts may dismiss an action under
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Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute
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or comply with the Federal Rules of Civil Procedure or the court’s orders); Ferdik v.
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Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (ordering dismissal for failure to
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comply with court orders).
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In deciding whether to dismiss for failure to prosecute or comply with court
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orders, a district court must consider five (5) factors: “(1) the public’s interest in
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expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the
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risk of prejudice to the defendants; (4) the public policy favoring disposition of cases
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on their merits; and (5) the availability of less drastic sanctions.” Omstead v. Dell,
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Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (quoting Henderson v. Duncan, 779 F.2d
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1421, 1423 (9th Cir. 1986)).
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“[The Ninth Circuit] ‘may affirm dismissal where at least four factors support
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dismissal . . . or where at least three factors “strongly” support dismissal.’” Yourish v.
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California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (quoting Hernandez v. City of
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El Monte, 138 F.3d 393, 399 (9th Cir. 1998)). In a case involving sua sponte
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dismissal, however, the fifth Henderson factor regarding the availability of less drastic
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sanctions warrants special focus. Hernandez, 138 F.3d at 399.
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B.
ANALYSIS
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1.
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In the instant action, the public’s interest in expeditious resolution of litigation
The public’s interest in expeditious resolution of litigation
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weighs in favor of dismissal. See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir.
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2002) (“The public’s interest in expeditious resolution of litigation always favors
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dismissal.” (quoting Yourish, above) (internal quotation omitted)). Plaintiff has not
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filed a FAC in compliance with the Court’s September 3, 2021 ODLA or otherwise
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responded to the Court’s October 25, 2021 or November 30, 2021 OSCs. In fact,
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Plaintiff has not corresponded with the Court at all since he first filed his Complaint
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on August 3, 2021. Dkt. 1. Given that Plaintiff has failed to interact with the Court
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for over four (4) months, this factor weighs in favor of dismissal. See Dkt. 1; see also
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Pagtalunan, 291 F.3d at 642 (finding that the plaintiff’s failure to pursue the case for
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almost four (4) months weighed in favor of dismissal).
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///
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///
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The Court’s need to manage its docket
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The second factor—the Court’s need to manage its docket—likewise weighs in
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favor of Dismissal. Courts have “the power to manage their dockets without being
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subject to the endless vexatious noncompliance of litigants.” See Ferdik, 963 F.2d at
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1261. As such, the second factor looks to whether a particular case has “consumed . .
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. time that could have been devoted to other cases on the [Court’s] docket.” See
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Pagtalunan, 291 F.3d at 642; Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th
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Cir. 2004) (“[R]esources continue to be consumed by a case sitting idly on the court’s
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docket.”).
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On September 3, 2021, the Court issued an ODLA ordering Plaintiff to file a
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FAC by October 4, 2021. Dkt. 8 at 9. The ODLA explicitly cautioned Plaintiff
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“failure to timely file a First Amended Complaint in conformity with this Order will
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result in the dismissal of the action.” Id. at 10.
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On October 25, 2021, after Plaintiff failed to respond to the ODLA, the Court
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issued an OSC why the Complaint should not be dismissed for lack of prosecution.
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Dkt. 9. The Court issued a second OSC on November 30, 2021, warning that failure
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to respond will result in dismissal. Dkt. 10.
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Plaintiff has failed to comply, or otherwise respond, to any of the Court’s
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Orders, all of which warned Plaintiff that his failure to comply could or would result
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in the recommended dismissal of the Complaint. See Dkts. 8 at 10; 9; 10. Plaintiff’s
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failure to prosecute and follow Court Orders hinders the Court’s ability to move this
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case toward disposition and suggests Plaintiff does not intend to or cannot litigate this
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action diligently. Consequently, the Court’s need to manage its docket favors
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dismissal here.
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3.
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The third factor—prejudice to Defendant(s)—also weighs in favor of dismissal.
The risk of prejudice to Defendant
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A rebuttable presumption of prejudice to defendant arises when plaintiffs
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unreasonably delay prosecution of an action. See In re Eisen, 31 F.3d 1447, 1452–53
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(9th Cir. 1994) (“[T]he failure to prosecute diligently is sufficient by itself to justify
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dismissal . . . [t]he law presumes injury from unreasonable delay.”).
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Nothing suggests such a presumption is unwarranted in this case. Plaintiff has
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not provided any reason for his failure to comply with either the Court’s ODLA or
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OSC and for his failure to communicate with the Court since he filed the original
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Complaint on August 3, 2021. Dkt. 1. Given the length of the delay, the Court finds
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Plaintiff’s delay in prosecuting this case to be unreasonable. Thus, prejudice is
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presumed and weighs in favor of dismissal. See, e.g., In re Phenylpropanolamine
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(PPA) Prod. Liab. Litig., 460 F.3d at 1227 (“The law . . . presumes prejudice from
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unreasonable delay.”).
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4.
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The fourth factor—public policy in favor of deciding cases on the merits—
Public policy favoring disposition on the merits
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ordinarily weighs against dismissal. See In re Phenylpropanolamine (PPA) Prod. Liab.
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Litig., 460 F.3d at 1228. Here, as it usually does, the fourth factor weighs against
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dismissal. It is, however, Plaintiff’s responsibility to move towards disposition at a
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reasonable pace and avoid dilatory and evasive tactics. See Morris v. Morgan Stanley,
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942 F.2d 648, 652 (9th Cir. 1991). Plaintiff has not discharged this responsibility
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despite having been: (1) instructed on his responsibilities; (2) granted sufficient time
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in which to discharge them; and (3) warned of the consequences of failure to do so.
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See Dkts. 8 at 10; 9; 10. Under these circumstances, and without any other
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information from Plaintiff, the policy favoring resolution of disputes on the merits
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does not outweigh Plaintiff’s failure to obey Court Orders or to file responsive
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documents within the time granted.
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5.
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The fifth factor—availability of less drastic sanctions—also weighs in favor of
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dismissal. A “district court need not exhaust every sanction short of dismissal before
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finally dismissing a case, but must explore possible and meaningful alternatives.”
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Henderson, 779 F.2d at 1424. Less drastic alternatives to dismissal include warning a
Availability of less drastic alternatives
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party that dismissal could result from failure to obey a court order. See Malone, 833
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F.2d at 132 n.1. Further, “a district court’s warning to a party that his [or her] failure
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to obey the court’s order will result in dismissal can satisfy the ‘consideration of
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alternatives’ requirement.” Ferdik, 963 F.2d at 1262 (citations omitted).
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Here, the Court cannot move the case toward disposition without Plaintiff’s
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compliance with Court Orders or participation in this litigation. Plaintiff has shown
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he is either unwilling or unable to comply with Court Orders by filing responsive
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documents or otherwise cooperating in prosecuting this action. Given this record, the
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Court finds that any less drastic alternatives to dismissal would be inadequate to
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remedy Plaintiff’s failures to obey Court Orders and to prosecute.
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6.
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Finally, while dismissal should not be entered unless Plaintiff has been notified
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dismissal is imminent, see W. Coast Theater Corp. v. City of Portland, 897 F.2d 1519,
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1523 (9th Cir. 1990), the Court has warned Plaintiff about the potential dismissal in
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the September 3, 2021 ODLA and in two (2) separate OSCs. See Dkts. 8 at 10; 9; 10.
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As discussed above, four (4) of the Rule 41(b) factors weigh in favor of
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Summary
dismissal. Accordingly, this action is subject to dismissal.
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IV.
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ORDER
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IT IS THEREFORE ORDERED THAT Petitioner’s case is DISMISSED
without prejudice.
Dated: January 7, 2022
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HONORABLE MARK C. SCARSI
NORABLE
United States District Judge
Presented by:
MARGO A. ROCCONI
United States Magistrate Judge
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