REPORT AND RECOMMENDATION

EILEEN S. WILLETT, Magistrate Judge.

TO THE HONORABLE DAVID G. CAMPBELL, UNITED STATES DISTRICT JUDGE:

On June 12, 2017, Adrian Perez-Sanchez ("Movant") filed a "Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody" (the "Motion to Vacate") (Doc. 1). On July 26, 2017, the Court required the Government to respond to the three ineffective assistance of counsel claims presented in the Motion to Vacate. (Doc. 3). Thereafter, the Government moved for an order requiring Movant to execute a Limited Attorney-Client Privilege Waiver. (Doc. 4). The Court granted the Motion (Doc. 4) and ordered Movant to either: (i) file a signed copy of the waiver in the form attached to the Government's Motion; (ii) file a notice of withdrawal of his claims of ineffective assistance of counsel; or (iii) propose modifications to the form of the waiver. (Doc. 7).

Movant did not timely respond to the Court's Order (Doc. 7). On October 6, 2017, the Court ordered that by October 20, 2017, Movant must show cause why the Motion to Vacate should not be dismissed for failure to comply with the Court's Order. (Doc. 8). As of the date of this Report and Recommendation, Movant has not responded to the Order to Show Cause.

Federal Rule of Civil Procedure 41(b) provides that "if the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it." In Link v. Wabash Railroad Co., 370 U.S. 626, 629-31 (1962), the Supreme Court recognized that a federal district court has the inherent power to dismiss a case sua sponte for failure to prosecute, even though the language of Federal Rule of Civil Procedure 41(b) appears to require a motion from a party. Moreover, in appropriate circumstances, the Court may dismiss a pleading for failure to prosecute even without notice or hearing. Link, 370 U.S. at 633.

In determining whether Movant's failure to prosecute warrants dismissal of the case, the Court must weigh 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." Carey, 856 F.2d at 1440 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). "The first two of these factors favor the imposition of sanctions in most cases, while the fourth factor cuts against a default or dismissal sanction. Thus the key factors are prejudice and availability of lesser sanctions." Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir. 1990).

Here, the first and second factors favor dismissal of this case. Movant's failure to respond to the Court's Orders prevents the case from proceeding in the foreseeable future.

The third factor also favors dismissal. Movant's claims of ineffective assistance of counsel appear to require a waiver of Movant's attorney-client privilege. Movant's failure to provide a waiver or show cause why a waiver is unnecessary has prevented the Government from being able to defend against Movant's claims.

The fourth factor, as always, weighs against dismissal.

The final factor requires the Court to consider whether a less drastic alternative is available. Movant's failure to respond to the Court's Orders suggests that Movant intends to abandon this action. The undersigned finds that only one less drastic sanction is realistically available. Rule 41(b) provides that a dismissal for failure to prosecute operates as an adjudication upon the merits "[u]nless the dismissal order states otherwise." In this case, the undersigned finds that a dismissal with prejudice would be unnecessarily harsh. It is therefore recommended the Court dismiss the Motion to Vacate (Doc. 1) without prejudice pursuant to Federal Rule of Civil Procedure 41(b).

Based on the foregoing,

IT IS RECOMMENDED that the Court dismiss the Motion to Vacate (Doc. 1) without prejudice.

IT IS FURTHER RECOMMENDED that a certificate of appealability and leave to proceed in forma pauperis on appeal be denied because the undersigned does not find that jurists of reason would find it debatable that the dismissal of the Motion to Vacate (Doc. 1) is justified pursuant to Federal Rule of Civil Procedure 41(b).

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).