Barnes v. Hanford Superior Court Judge

Opinion

7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9

10 ANTOINE DESHAWN BARNES, Case No. 1:20-cv-00390-AWI-SAB

11 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF 12 v. ACTION FOR FAILURE TO COMPLY WITH A COURT ORDER, FAILURE TO 13 HANFORD SUPERIOR COURT JUDGE, et PROSECUTE, AND FAILURE TO STATE A al., COGNIZABLE CLAIM FOR RELIEF 14 Defendants. (ECF No. 18) 15 OBJECTIONS DUE WITHIN THIRTY

17 18 Antoine Deshawn Barnes (“Plaintiff”) is appearing pro se and in forma pauperis in this 19 civil rights action pursuant to 42 U.S.C. § 1983. 20 I. 22 On March 6, 2020, Plaintiff filed this action in the Sacramento Division of the Eastern 23 District of California against an unidentified state court judge and the Kings County District 24 Attorney’s Office alleging excessive prosecution, double jeopardy, and Constitutional violations 25 due to the failure to release him on bail. (ECF No. 1.) On March 17, 2020, the matter was 26 transferred to the Fresno Division of the Eastern District of California. (ECF No. 4.) On March 27 30, 2020, Plaintiff’s application to proceed in forma pauperis in this action was granted. (ECF No. 10.) 1 On March 30, 2020, Plaintiff filed an application to proceed n forma pauperis which was 2 denied as moot and a motion for a restraining order seeking an immediate transfer to San 3 Quentin State Prison. (ECF Nos. 11, 12, 13.) On April 3, 2020, Plaintiff’s complaint was 4 screened and found not to state any cognizable claims. (ECF No. 14.) Plaintiff was ordered to 5 file a first amended complaint within thirty days. (Id.) On this same date findings and 6 recommendations issued recommending denying Plaintiff’s motion for a restraining order. (ECF 7 No. 16.) The findings and recommendations notified Plaintiff that objections were to be filed 8 within thirty days. (Id.) 9 On April 15, 2020, Plaintiff filed a first amended complaint against Judge Roberts, the 10 Kings County District Attorney, and the CCPOA District Attorney. (ECF No. 18.) On April 21, 11 2020, Plaintiff’s first amended complaint was screened and found not to state a cognizable claim. 12 (ECF No. 18.) Plaintiff was ordered to file a second amended complaint within thirty days. (Id.) 13 On May 13, 2020, an order was filed adopting the April 3, 2020 findings and 14 recommendations and Plaintiff’s motion for a temporary restraining was denied. (ECF No. 19.) 15 More than thirty days have passed since Plaintiff was ordered to file a second amended 16 complaint, and Plaintiff has not filed a second amended complaint or otherwise responded to the 17 April 21, 2020 order. 18 II. 20 The Court is required to screen complaints brought by prisoners seeking relief against a 21 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 22 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 23 legally “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or 24 that “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 25 1915(e)(2)(B). 26 A complaint must contain “a short and plain statement of the claim showing that the 27 pleader is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 1 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 2 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate 3 that each defendant personally participated in the deprivation of Plaintiff’s rights. Jones v. 4 Williams, 297 F.3d 930, 934 (9th Cir. 2002). 5 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 6 liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 7 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be 8 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer 9 that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss 10 v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant 11 has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s 12 liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 13 F.3d at 969. 16 The Court accepts Plaintiff’s allegations in the complaint as true only for the purpose of 17 the sua sponte screening requirement under 28 U.S.C. § 1915. Plaintiff is in the custody of the 18 Kings County Sheriff. In his motion for a restraining order, Plaintiff stated that he has been 19 sentenced but has not been transferred to a California Department of Corrections and 20 Rehabilitation (“CDCR”) facility because they are not accepting new inmates due to the COVID- 21 19 state of emergency. Plaintiff’s first amended complaint is vague and composed mainly of 22 argument. The Court recites the facts contained within the first amended complaint (“FAC”). 23 Plaintiff was on suicide watch in cell 7 and was being watched by a black nurse. Nurse 24 Mattos stated in her report that she was sitting outside cell 5 watching inmate Anderson who was 25 on suicide watch. 26 Plaintiff had a preliminary hearing in case no. 18cm51151 on February 10, 2020. Judge

27 1 In an April 3, 2020 screening order granting Plaintiff leave to file an amended complaint, the Court took judicial notice of Plaintiff’s criminal case proceeding in the Kings County Superior Court. See Superior Court of California, 1 Roberts, the Kings County Prosecutor, and Plaintiff’s attorney, Mr. Trevino, asked Nurse Mattos, 2 who was under oath, three times if she was the exact nurse sitting outside Plaintiff’s cell on the 3 day of the alleged 314.2 Three times Nurse Mattos stated that she was the nurse. Judge Roberts 4 stated on the record that he believed her and found Plaintiff guilty of a 314.3 Judge Roberts did 5 not have a CDCR report contradicting Nurse Mattos testimony.4 Plaintiff alleges that Nurse 6 Mattos was sitting three cells away and Judge Roberts allowed her to commit perjury. 7 Nancy Pelosi sent Plaintiff an email asking him for a favor in President Trump’s 8 impeachment. Plaintiff sent her an email in return asking her to vacate his case and have the 9 Federal Bureau of Investigation do an investigation of Judge Roberts and the Kings County 10 District Attorney’s Office. A few days later, Plaintiff was remanded into custody and denied 11 release on his own recognizance. 12 Plaintiff had a judge by the name of Roberts in an old case in Hayward that was heard in 13 the Superior Court of Alameda County and a case in the Salinas Superior Court. Now, this is the 14 third Judge Roberts that has sat on one of Plaintiff’s cases. 15 Plaintiff brings this action against Judge Roberts and the CCPOA District Attorneys 16 Union alleging violation of the Fifth, Eighth, and Fourteenth Amendments, malicious 17 prosecution and double jeopardy. He is seeking one million dollars and for the court to 18 immediately order the Federal Bureau of Investigations to conduct a field investigation inquiry 19 into the “CCPOA plot, conspiracy of CDCR’s involvement in all district attorneys unions listed 20 in this amended complaint.” (FAC 8, ECF No. 17.) 21 / / / 22 / / / 23 available at https://cakingsportal.tylerhost.net/CAKINGSPROD/Home/WorkspaceMode?p=0, search case no. 24 18cm5115 (last visited June 3, 2020). 2 The Court assumes that Plaintiff is referencing section 314 of the California Penal Code which prohibits “willfully 25 and lewdly” exhibiting a person or his private parts where there are others present to be offended or annoyed. Cal. Pen. Code § 314.

26 3 Although Plaintiff states that Judge Roberts found him guilty, the preliminary hearing finding determined whether there was sufficient evidence for Plaintiff to be bound over for trial and the charges that will be tried. People v. 27 Lopez, 26 Cal.App.5th 382, 389 (2018), as modified (Aug. 20, 2018). 1 IV. 3 Plaintiff’s vague and conclusory allegations of plots, hate crime, conspiracy, retaliation, 4 malicious prosecution, and double jeopardy are not sufficient to state a claim in this action. As 5 Plaintiff was previously advised in the April 3, 2020 screening order, he cannot state a claim by 6 setting forth conclusory allegations that are unsupported by any factual allegations.

7 Under Twombly and Iqbal “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 8 U.S. at 678. This requires factual content for the court to draw the reasonable inference that the defendant is liable for the alleged misconduct. Id. A complaint 9 stops short of the line between probability and the possibility of relief where the facts pled are merely consistent with a defendant’s liability. Id. Further, while 10 the court is to accept all “well pleaded factual allegations” in the complaint as true, id. at 679, it is not bound to accept as true labels, conclusions, formulaic 11 recitations of the elements of a cause of action or legal conclusions couched as factual allegations, Twombly, 550 U.S. at 555. Finally, the conclusory allegations 12 in the complaint are not entitled to the presumption of truth. Iqbal, 556 U.S. at 681. In other words, Plaintiff’s amended complaint must contain sufficient 13 factual allegations that would allow the court to reasonably infer that the defendant is liable for the conduct alleged. 14 15 (Screening Order Granting Plaintiff Leave to File Amended Complaint 11, ECF No. 14.) 16 In his first amended complaint, Plaintiff has set forth minimal factual allegations and 17 claims that Nurse Mattos was coerced and bribed into “being one of many promiscuous, scorned 18 females in connection on having sexual favors on getting paid gifts, bribes, cash, thru CCPOA 19 male CDCR ‘Greenwall Gang Officers’ to help keep ‘job security’ in retaliation on illegally 20 paying scorned promiscuous like Mattos to falsify documents District Attorneys Office(s) to 21 illegally make inmate men fall victim of circumstances that arent 290 sex offenders, arent child 22 molestors, nor rapists, behind a ‘corrupt web’ that CCPOA ‘built’ in ‘retaliation’ to keep 23 innocent men/nonviolen ‘intrapped’ in prisons because CCPOA unions got mad that petitioner 24 helped Governor Jerry Brown before he retired put funds toward”5 Proposition 57 and that this 25 lawsuit needs to put a stop to abuse of power hate crime. (FAC 1.) 26 27 1 A. Absolute Judicial Immunity 2 In his original complaint, Plaintiff was bringing suit against the unidentified judge that 3 ordered him detained and he was provided with the legal standard for absolute judicial immunity. 4 In his first amended complaint, Plaintiff brings a claim against Judge Roberts who is the Superior 5 Court judge that presided over his preliminary hearing. 6 Absolute judicial immunity is afforded to judges for acts performed by the judge that 7 relate to the judicial process. In re Castillo, 297 F.3d 940, 947 (9th Cir. 2002), as amended 8 (Sept. 6, 2002). “This immunity reflects the long-standing ‘general principle of the highest 9 importance to the proper administration of justice that a judicial officer, in exercising the 10 authority vested in him, shall be free to act upon his own convictions, without apprehension of 11 personal consequences to himself.’ ” Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th 12 Cir. 2004) (quoting Bradley v. Fisher, 13 Wall. 335, 347 (1871)). This judicial immunity 13 insulates judges from suits brought under section 1983. Olsen, 363 F.3d at 923. 14 Absolute judicial immunity insulates the judge from actions for damages due to judicial 15 acts taken within the jurisdiction of the judge’s court. Ashelman v. Pope, 793 F.2d 1072, 1075 16 (9th Cir. 1986). “Judicial immunity applies ‘however erroneous the act may have been, and 17 however injurious in its consequences it may have proved to the plaintiff.’ ” Id. (quoting 18 Cleavinger v. Saxner, 474 U.S. 193 (1985)). However, a judge is not immune where he acts in 19 the clear absence of jurisdiction or for acts that are not judicial in nature. Ashelman, 793 F.2d at 20 1075. Judicial conduct falls within “clear absence of all jurisdiction,” where the judge “acted 21 with clear lack of all subject matter jurisdiction.” Stone v. Baum, 409 F.Supp.2d 1164, 1174 (D. 22 Ariz. 2005). 23 To determine if an act is judicial in nature, the court considers whether (1) the precise act 24 is a normal judicial function; (2) the events occurred in the judge’s chambers; (3) the controversy 25 centered around a case then pending before the judge; and (4) the events at issue arose directly 26 and immediately out of a confrontation with the judge in his or her official capacity. Duvall v. 27 Cty. of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001), as amended on denial of reh’g (Oct. 11, 1 Here, Plaintiff alleges that Judge Roberts heard the testimony of Nurse Mattos during a 2 preliminary hearing and stated that he found it credible despite not having a report that Plaintiff 3 claims contradicts her testimony. Determining the credibility of witness and making a finding of 4 whether the evidence is sufficient for a criminal defendant to be bound over for trial is clearly 5 within the normal judicial functions of the judicial officer. As the judicial officer presiding over 6 the preliminary hearing, Judge Roberts is entitled to absolute judicial immunity from damages 7 for his findings made during the hearing. Plaintiff cannot state a claim against Judge Roberts for 8 finding Nurse Mattos credible and that Plaintiff should be held over for trial during the 9 preliminary hearing. 10 Plaintiff states that a Judge Roberts presided over a case in Hayward, California in the 11 Superior Court of Alameda County and a case in Salinas Superior Court. Plaintiff states that this 12 is the third time a judge by the name of Roberts has presided over his criminal case. He contends 13 that there is a conflict of interest because a third Judge Roberts is presiding over his current case 14 in Hanford Superior Court. Plaintiff fails to allege any facts to state a claim that Judge Roberts is 15 presiding over his criminal action in clear absence of jurisdiction. Judge Roberts is entitled to 16 absolute judicial immunity for the actions alleged in the complaint. 17 B. State Actor Requirement 18 Plaintiff brings this action against the CCPOA District Attorneys Union alleging a vague 19 conspiracy between law enforcement officials and the Union to file false charges against 20 individuals to keep them in custody. 21 To state a claim under section 1983, Plaintiff is required to show that (1) each defendant 22 acted under color of state law and (2) each defendant deprived him of rights secured by the 23 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 24 2006). In order to recover under section 1983 for conduct by the Union, Plaintiff must show 25 “that the conduct allegedly causing the deprivation of a federal right be fairly attributable to the 26 State.” Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) 27 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). Generally, private parties do 1 The state-action element of section 1983 “excludes from its reach merely private conduct, no 2 matter how discriminatory or wrongful.” Caviness, 590 F.3d at 812 (quoting Am. Mfrs. Mut. 3 Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)). State action is only found where there is such a 4 close nexus between the state and the challenged action that seemingly private action can be 5 fairly treated as that of the state. Caviness, 590 F.3d at 812. 6 A defendant acts under color of state law under section 1983 where he has “exercised 7 power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed 8 with the authority of state law.’ ” West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States 9 v. Classic, 313 U.S. 299, 326 (1941)). This does not require that the defendant be an employee 10 of the state, but he must be “a willful participant in joint action with the State or its agents. 11 Private persons, jointly engaged with state officials in the challenged action, are acting ‘under 12 color’ of law for purposes of § 1983 actions.” Dennis v. Sparks, 449 U.S. 24, 27–28 (1980). 13 Here, Plaintiff has not alleged that the CCPOA is a state actor. Rather, the CCPOA is a private 14 union that represents public employees. See California Correctional Peace Officers Association 15 website, located at http://www.ccpoa.org/. 16 A private party may be acting under color of law if they conspire with or engage in joint 17 activity with State officials (joint action test), become so closely related with the State that their 18 action can be said to be those of the State (government nexus test), are performing public 19 functions (public function test), or are regulated to the point that the conduct is compelled by the 20 State (state compulsion test). Price, 939 F.2d at 708-09; Single Moms, Inc. v. Montana Power 21 Co., 331 F.3d 743, 747 (9th Cir. 2003); see Pollard v. Geo Group, Inc., 607 F.3d 583, 590-91 22 (9th Cir. 2010); Blum v. Supreme Court, 457 U.S. 991 (1982). 23 Plaintiff contends that the CCPOA got mad that he had helped Governor Jerry Brown put 24 funds toward rehabilitation programs, drug programs, and Propositions 57 and 47 and not into 25 the hands of the corrupt CCPOA to building more prisons. He states that he is being racially 26 targeted and racial profiled by all CCPOA district attorneys, CDCR CCPOA, and judges because 27 they were against Proposition 57 and Senate Bill 10 that was approved and passed by Governor 1 and racial targeting are not supported by any factual allegations in the complaint. 2 The basis of Plaintiff’s claim in this matter is that Nurse Mattos falsified her testimony. 3 Plaintiff’s speculation, which does not appear to be fully based in reality, for the reason that 4 Nurse Mattos provided what he considers to be falsified testimony is not sufficient to allege a 5 conspiracy. Plaintiff has not alleged any facts that would allow the Court to reasonably infer that 6 any individual or the CCPOA was involved in a conspiracy to procure falsified testimony. 7 Plaintiff’s conclusory allegations do not provide the required nexus to state a claim against the 8 CCPOA under section 1983. 9 C. Fifth Amendment 10 Plaintiff brings this action alleging violation of the Fifth Amendment. As Plaintiff was 11 previously advised in the April 3, 2020 screening order, the Fifth Amendment does not apply to 12 his claims in this action. (ECF No. 14 at 7.) 13 D. Eighth Amendment 14 Plaintiff also alleges a violation of the Eighth Amendment. But again, Plaintiff was 15 advised in the April 3, 2020 screening order that the Eighth Amendment does not apply to the 16 claims raised in this action. (ECF No. 14 at 7.) 17 E. Fourteenth Amendment 18 Plaintiff makes a vague allegation that his due process rights have been violated. 19 Plaintiff was advised in the April 3, 2020 screening order that to state a claim under the 20 Fourteenth Amendment he must identity the liberty or property interest at stake and the due 21 process that he did not receive. (ECF No. 14 at 7-8.) Plaintiff’s vague references to due process 22 are insufficient to state a cognizable claim. 23 F. Malicious Prosecution 24 Plaintiff contends that he was subjected to malicious prosecution. As Plaintiff was 25 previously advised, a claim for malicious prosecution or abuse of process is not generally 26 cognizable under Section 1983 if a process is available within the state judicial system to provide 27 a remedy. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987) (citations omitted). 1 of equal protection of the laws or is otherwise intended to subject a person to denial of 2 constitutional rights.” Id. (citations omitted). 3 In order to prevail on a Section 1983 claim of malicious prosecution, a plaintiff “must 4 show that the defendants prosecuted [him] with malice and without probable cause, and that they 5 did so for the purpose of denying [him] equal protection or another specific constitutional right.” 6 Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995) (citations omitted); see also 7 Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004); Lacey v. Maricopa County, 8 693 F.3d 896, 919 (9th Cir. 2012). A malicious prosecution claim may be brought against 9 prosecutors or against the individuals who wrongfully caused the prosecution. Smith v. Almada, 10 640 F.3d 931, 938 (9th Cir. 2011). Probable cause is an absolute defense to malicious 11 prosecution. Lassiter v. City of Bremerton, 556 F.3d 1049, 1054 (9th Cir. 2009). 12 In order to state a malicious prosecution claim, Plaintiff must show that the prior 13 proceeding was commenced by or at the direction of the defendant and it was 1) pursued to a 14 legal termination favorable to plaintiff; 2) brought without probable cause; and 3) initiated with 15 malice. Ayala v. Environmental Health, 426 F.Supp.2d 1070, 1083 (E.D. Cal. 2006). For the 16 termination be considered “favorable” to the malicious prosecution plaintiff, it must be reflective 17 of the merits of the action and of the plaintiff’s innocence of the charges. Villa v. Cole, 4 18 Cal.App.4th 1327, 1335 (1992). 19 Plaintiff has failed to name as a defendant any individual who caused the case to be 20 prosecuted against Plaintiff with malice and without probable cause. Here, Plaintiff alleges that 21 Nurse Mattos testified at his preliminary hearing that she was sitting outside his cell and he was 22 held to answer on the charges. Further, Plaintiff has not alleged that the action against him has 23 been terminated in his favor. From review of the docket in the state court action, the state court 24 matter, 18cm5115, is still pending. Since the trial judge found that the evidence was sufficient to 25 hold Plaintiff to answer and he is currently being prosecuted for the charge, it does not appear 26 that Plaintiff can state a claim for malicious prosecution. 27 G. Double Jeopardy 1 The Double Jeopardy Clause precludes “a second prosecution for the same offense,” and 2 prevents “the State from ‘punishing twice, or attempting a second time to punish criminally, for 3 the same offense.’” Kansas v. Hendricks, 521 U.S. 346, 369 (1997) (quoting Witte v. United 4 States, 515 U.S. 389, 396 (1995)). “This constitutional guarantee provides three forms of 5 protection: It prohibits ‘a second prosecution for the same offense after acquittal, a second 6 prosecution for the same offense after conviction, and multiple punishments for the same 7 offense.’ ” United States v. Enas, 255 F.3d 662, 665 (9th Cir. 2001) (quoting Dep’t of Revenue 8 v. Kurth Ranch, 511 U.S. 767, 769 n. 1 (1994)). 9 In the April 3, 2020 screening order, Plaintiff was advised that the basis of his double 10 jeopardy claim was unclear and that “the prohibition against double jeopardy does not bar 11 criminal prosecution for conduct that has been the subject of prison disciplinary sanctions for 12 two independent reasons: 1) even if the sanctions were ‘punishment,’ they were integral parts of 13 [the inmate’s punishment for his underlying offense]; and 2) the sanctions are not punishment for 14 purposes of double jeopardy because they are solely remedial.” United States v. Brown, 59 F.3d 15 102, 104 (9th Cir. 1995). 16 In his first amended complaint, Plaintiff alleges that the CCPOA paid all district attorneys 17 to prosecute him for the same crime twice in Kern County, L.A. County, Monterey County, 18 Alameda County, and now Kings County. However, Plaintiff has alleged that the incident 19 involved in the complaint occurred in prison. (See ECF No. 14 at 2 (plaintiff was taken back 20 into custody on January 29, 2020 due to allegations from an incident that occurred within prison 21 three years ago).) Plaintiff is currently being held on these charges in Kings County. None of 22 the counties listed would have jurisdiction to place him on trial for an event that occurred in a 23 prison in Kings County. To the extent that Plaintiff is alleging that he was charged for the same 24 criminal conduct that occurred on different occasions the double jeopardy clause is not 25 implicated. 26 Plaintiff pleads with the Court to read Gamble v. United States, 139 S. Ct. 1960 (2019), 27 to support his double jeopardy claim. In Gamble, the Supreme Court refused to overrule the 1 state authorities. 139 S. Ct. at 1980. Here, Plaintiff has not identified any other prosecution of 2 the charges that are the subject of the current Kings County criminal action that would implicate 3 a double jeopardy claim. Plaintiff has failed to state a double jeopardy claim. 4 H. Injunctive Relief 5 Plaintiff seeks an order directing the Federal Bureau of Investigation to conduct an 6 investigation into the conduct of the CCPOA. The Court may not attempt to determine the rights 7 of persons not before it. See Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229, 234-35 8 (1916); Zepeda v. U.S. I.N.S., 753 F.2d 719, 727-28 (9th Cir. 1983). Even if Plaintiff were to 9 state a claim in this action, the allegations provide no basis for this Court to have jurisdiction to 10 order the Federal Bureau of Investigations, who would not be a party to the suit, to conduct an 11 investigation. 12 V.

FOR FAILURE TO PROSECUTE 14 15 The Court screened Plaintiff’s first amended complaint and he was ordered to file a 16 second amended complaint within thirty days of April 21, 2020. Plaintiff has failed to respond to 17 the Court’s April 21, 2020 order and the time to do so has expired. As a result, there is no 18 pleading on file which sets forth any claims upon which relief may be granted. Therefore, this 19 action can proceed no further without Plaintiff’s cooperation and compliance with the orders at 20 issue, and the action cannot simply remain idle on the Court’s docket, unprosecuted. 21 The Court has the inherent power to control its docket and may, in the exercise of that 22 power, impose sanctions where appropriate, including dismissal of the action. Bautista v. Los 23 Angeles Cnty., 216 F.3d 837, 841 (9th Cir. 2000). In determining whether to dismiss an action, 24 the Court must weigh “(1) the public’s interest in expeditious resolution of litigation; (2) the 25 Court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 26 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 27 sanctions.” In re Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 1 to do, and are not conditions that must be met in order for a court to take action. Id. (citation 2 omitted). 3 Based on Plaintiff’s failure to comply with or otherwise respond to the Court’s order, the 4 Court is left with no alternative but to recommend dismiss of the action for failure to prosecute. 5 In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d at 1226. Plaintiff has 6 failed to comply with the Court’s order, affecting the use of the Court’s resources and 7 management of its docket. There is no pleading on file in this action which sets forth any claims 8 upon which relief may be granted. The screening order granting Plaintiff leave to file an 9 amended complaint advised him that the failure to file an amended complaint would result in a 10 recommendation that this action be dismissed. (ECF No. 18 at 12.) Plaintiff has been warned of 11 dismissal, to no avail, and as Plaintiff is proceeding in forma pauperis and has ceased litigating 12 this action, no lesser sanctions are available. Accordingly, Plaintiff’s failure to comply with the 13 Court’s order warrants dismissal of this action. In re Phenylpropanolamine (PPA) Products 14 Liability Litigation, 460 F.3d at 1226; Local Rule 110. 15 VI. 17 For the reasons stated, Plaintiff’s complaint fails to state a cognizable claim for a 18 violation of his federal rights. Plaintiff has been granted the opportunity to file an amended 19 complaint to cure the deficiencies identified in this order and was ordered to file an amended 20 complaint within thirty days of April 21, 2020. Plaintiff has not done so. 21 Accordingly, IT IS HEREBY RECOMMENDED that: 22 1. Plaintiff’s first amended complaint be dismissed for failure to state a claim; and 23 2. This action be dismissed for Plaintiff’s failure to state a claim, failure to obey a 24 court order, and failure to prosecute. 25 This findings and recommendations is submitted to the district judge assigned to this 26 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within thirty (30) 27 days of service of this recommendation, Plaintiff may file written objections to this findings and wOoe UVES MUO OPO Te OY OT Ott

1 | Magistrate Judge’s Findings and Recommendations.” The district judge will review the 2 | magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). 3 | Plaintiff is advised that failure to file objections within the specified time may result in the 4 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 5 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 6 IS SO ORDERED. OF nf Be g | Dated: _June 3, 2020 _ ef 9 UNITED STATES MAGISTRATE JUDGE

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