Emanuel James Ramirez v. Dr. Joseph Blick, et al.

• Court: District Court, E.D. California
• Decided: December 22, 2025
• Docket: 1:25-cv-01231
• Status: Unknown

Opinion

1 2 3

6 UNITED STATES DISTRICT COURT

7 EASTERN DISTRICT OF CALIFORNIA

9 EMANUEL JAMES RAMIREZ, Case No. 1:25-cv-01231-EPG (PC)

10 Plaintiff, ORDER TO ASSIGN A DISTRICT JUDGE

11 v. FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION 12 DR. JOSEPH BLICK, et al., BE DISMISSED WITH PREJUDICE FOR FAILURE TO STATE A CLAIM, FAILURE 13 Defendants. TO PROSECUTE, AND FAILURE TO COMPLY WITH A COURT ORDER 14 (ECF Nos. 7, 9). 15 OBJECTIONS, IF ANY, DUE WITHIN 16 THIRTY DAYS

17 Plaintiff Emanuel James Ramirez is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action filed under 42 U.S.C. § 1983. (ECF Nos. 1, 6). His 19 complaint, filed on September 18, 2025, alleges that Defendants (all but one of which are 20 prison doctors) denied him his right to adequate medical care in connection with his Valley 21 Fever diagnosis. (ECF No. 1). 22 On October 2, 2025, the Court screened the complaint and concluded that Plaintiff 23 failed to state any cognizable claims. (ECF No. 7). The Court gave Plaintiff thirty days to file a 24 first amended complaint or to notify the Court that he wanted to stand on his complaint. (Id. at 25 11). And the Court warned Plaintiff that “[f]ailure to comply with this order may result in the 26 dismissal of this action.” (Id. at 12). Thereafter, the Court granted Plaintiff an extension to 27 November 28, 2025, to respond to the screening order, warning that failure to comply with the 28 1 order “may result in sanctions, including the dismissal of this case.” (ECF No. 9). 2 The extended deadline to respond to the screening order has expired, and Plaintiff has 3 not filed an amended complaint or otherwise responded to the Court’s order. Accordingly, for 4 the reasons given below, the Court will recommend that Plaintiff’s case be dismissed, with 5 prejudice, for failure to state a claim, failure to prosecute, and failure to comply with a court 6 order. 7 I. SCREENING REQUIREMENT 8 The Court is required to screen complaints brought by prisoners seeking relief against a 9 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 10 The Court must dismiss a complaint, or a portion of it, if the prisoner has raised claims that are 11 frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek 12 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), 13 (2). Additionally, as Plaintiff is proceeding in forma pauperis (ECF No. 6), the Court may 14 screen the complaint under 28 U.S.C. § 1915. “Notwithstanding any filing fee, or any portion 15 thereof, that may have been paid, the court shall dismiss the case at any time if the court 16 determines that the action or appeal fails to state a claim upon which relief may be granted.” 17 28 U.S.C. § 1915(e)(2)(B)(ii). 18 A complaint is required to contain “a short and plain statement of the claim showing 19 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 20 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 21 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 22 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A plaintiff must set forth “sufficient 23 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 24 (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting 25 this plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts 26 “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 27 677, 681 (9th Cir. 2009) (citation and internal quotation marks omitted). Additionally, a 28 plaintiff’s legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 1 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 2 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 3 pro se complaints should continue to be liberally construed after Iqbal). 4 II. SUMMARY OF PLAINTIFF’S COMPLAINT1 5 Plaintiff sues twelve Defendants: (1) California Department of Corrections and 6 Rehabilitation (CDCR) Secretary Jeff Macomber; (2) Dr. Joseph Blick; (3) Dr. Kiwana Hill; 7 (4) Dr. Bruce Troup; (5) Dr. Andrew Nicks; (6) Dr. James Carter Thomas; (7) Dr. Randolph 8 Wilson; (8) Dr. Mark Davis; (9) Dr. Naila Khan; (10) Dr. Saltsgaver Salm; (11) Dr. Vincent 9 Covelli; and (12) Dr. Mariana Lotersztain.2 10 Plaintiff alleges that each of these Defendants denied him adequate medical care in 11 violation of the Eighth Amendment. The Court will address the allegations against each 12 Defendant in detail below. But generally, Plaintiff alleges that, beginning in 2010 he failed to 13 receive adequate medical care concerning his Valley Fever diagnosis (or alternatively referred 14 to as “cocci” in the complaint). His allegations fall into the following categories: (1) he was 15 misdiagnosed; (2) he was not properly informed of the severity of his conditions; and (3) he did 16 not receive adequate treatment. 17 As for relief, Plaintiff seeks a declaration that Defendants violated his constitutional 18 rights, an injunction requiring Defendants to provide him “necessary medications,” and $10 19 million in damages. 20 III. ANALYSIS OF PLAINTIFF’S COMPLAINT 21 A. Section 1983 22 The Civil Rights Act under which this action was filed provides as follows: 23 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes 24 to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 25 secured by the Constitution and laws, shall be liable to the party injured in an 26 27 1 For readability, minor alterations, like changing capitalization and correcting misspellings, have been made to some of Plaintiff’s quotations without indicating each change. 28 2 Because Dr. Nicks and Dr. Wilson are not listed on the docket, the Court will direct the Clerk of Court to add them. action at law, suit in equity, or other proper proceeding for redress . . . . 1 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 2 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 3 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see 4 also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los 5 Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 6 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 7 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under 8 color of state law, and (2) the defendant deprived him of rights secured by the Constitution or 9 federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also 10 Marsh v. County of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of 11 state law”). A person deprives another of a constitutional right, “within the meaning of § 1983, 12 ‘if he does an affirmative act, participates in another’s affirmative act, or omits to perform an 13 act which he is legally required to do that causes the deprivation of which complaint is 14 made.’” Preschooler II v. Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) 15 (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection 16 may be established when an official sets in motion a ‘series of acts by others which the actor 17 knows or reasonably should know would cause others to inflict’ constitutional 18 harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of 19 causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.” 20 Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City 21 of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 22 A plaintiff must demonstrate that each named defendant personally participated in the 23 deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there must be an actual 24 connection or link between the actions of the defendants and the deprivation alleged to have 25 been suffered by the plaintiff. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 26 691, 695 (1978). 27 \\\ 28 1 B. Deliberate Indifference 2 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an 3 inmate must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 4 1091, 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). This requires 5 Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that ‘failure to treat a 6 prisoner’s condition could result in further significant injury or the unnecessary and wanton 7 infliction of pain,’” and (2) that “the defendant’s response to the need was deliberately 8 indifferent.” Id. (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992)), 9 overruled on other grounds by WMX Technologies v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en 10 banc). 11 Deliberate indifference is established only where the defendant subjectively “knows of 12 and disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 13 1051, 1057 (9th Cir. 2004) (citation omitted). Deliberate indifference can be established “by 14 showing (a) a purposeful act or failure to respond to a prisoner’s pain or possible medical need 15 and (b) harm caused by the indifference.” Jett, 439 F.3d at 1096 (citation omitted). Civil 16 recklessness (failure “to act in the face of an unjustifiably high risk of harm that is either known 17 or so obvious that it should be known”) is insufficient to establish an Eighth Amendment 18 violation. Farmer v. Brennan, 511 U.S. 825, 836-37 & n.5 (1994) (citations omitted). 19 A difference of opinion between an inmate and prison medical personnel—or between 20 medical professionals—regarding appropriate medical diagnosis and treatment is not enough to 21 establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). 22 Additionally, “a complaint that a physician has been negligent in diagnosing or treating a 23 medical condition does not state a valid claim of medical mistreatment under the Eighth 24 Amendment. Medical malpractice does not become a constitutional violation merely because 25 the victim is a prisoner.” Estelle, 429 U.S. at 106. “To show deliberate indifference, the 26 plaintiff must show that the course of treatment the [official] chose was medically unacceptable 27 under the circumstances and that the [official] chose this course in conscious disregard of an 28 excessive risk to the plaintiff’s health.” Edmo v. Corizon, Inc., 935 F.3d 757, 786 (9th Cir. 1 2019) (internal quotation marks and citation omitted). 2 With these standards in mind, the Court turns to the allegations against each Defendant. 3 1. Dr. Thomas and Dr. Wilson 4 Plaintiff alleges that, “from 2010 through 2011 [Dr. Thomas and Dr. Wilson] failed to 5 notify [him] of the severity of his illness or the lung damage that he was diagnosed with.” (ECF 6 No. 1, p. 11). Plaintiff indicates that these events occurred at Pleasant Valley State Prison. (Id. 7 at 4, 6). Further, “X-Rays taken on 1-31-2011 exhibited said lung damage.” (Id. at 11). And Dr. 8 Thomas and Dr. Wilson “co-conspired with other doctors employed by the [CDCR] prison 9 system to deceive Plaintiff about his lung damage to avoid liability for damage to [Plaintiff’s] 10 health.” (Id. at 12). Lastly, they placed his “safety at risk by intentional negligence and 11 malpractice.” (Id.). 12 Under the above standards, Plaintiff fails to state a constitutional claim against Dr. 13 Thomas and Dr. Wilson. As an initial matter, Plaintiff fails to identify any medical care that Dr. 14 Thomas and Dr. Wilson delayed administering or denied him altogether. Rather, Plaintiff’s 15 allegations are that (1) they did not let him know about how severe his illness was or the lung 16 damage he had; (2) conspired with unspecified CDCR doctors to deceive him about his lung 17 damage to avoid potential liability; and (3) were negligent and committed malpractice. 18 The Ninth Circuit has concluded that “[a] showing of medical malpractice or negligence 19 is insufficient to establish a constitutional deprivation under the Eighth Amendment.” Toguchi, 20 391 F.3d at 1060. Thus, Plaintiff’s allegations that Dr. Thomas and Dr. Wilson were negligent 21 and committed malpractice fail to state a constitutional claim for deliberate indifference to 22 Plaintiff’s serious medical needs. 23 Furthermore, Plaintiff’s allegations of conspiracy are conclusory. To state a claim for 24 conspiracy under § 1983, Plaintiff must show the existence of an agreement or meeting of the 25 minds to violate constitutional rights, Avalos v. Baca, 596 F.3d 583, 592 (9th Cir. 2010); 26 Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2001), and that an “actual deprivation of his 27 constitutional rights resulted from the alleged conspiracy,” Hart v. Parks, 450 F.3d 1059, 1071 28 (9th Cir. 2006) (quoting Woodrum v. Woodward County, Oklahoma, 866 F.2d 1121, 1126 (9th 1 Cir. 1989)). “‘To be liable, each participant in the conspiracy need not know the exact details of 2 the plan, but each participant must at least share the common objective of the conspiracy.’” 3 Franklin, 312 F.3d at 441 (quoting United Steelworkers of Am. v. Phelps Dodge Corp., 865 4 F.2d 1539, 1541 (9th Cir.1989)). Additionally, Plaintiff must allege facts indicating that 5 Defendants “conspired or acted jointly in concert and that some overt act [was] done in 6 furtherance of the conspiracy.” Sykes v. State of California, 497 F.2d 197, 200 (9th Cir. 1974). 7 Although Plaintiff asserts that Dr. Thomas and Dr. Wilson conspired with other CDCR doctors 8 to deceive him about his lung damage to avoid liability, he fails to allege facts showing that 9 there was any agreement, not to mention an agreement to deprive Plaintiff of his constitutional 10 rights. 11 2. Dr. Troup and Dr. Nicks 12 Plaintiff’s complaint alleges that Dr. Troup “misdiagnosed” Plaintiff’s “lung damage as 13 ‘old granulomatous disease’ on Plaintiff’s third right-side rib bone, his co-opinion diagnosis by 14 [Dr. Nicks] concurred with the Troup misdiagnosis on 3-26-2011, never informing [Plaintiff] of 15 cocci scarring on his right lung.” (ECF No. 1, p. 11). On February 13, 2017, “while at San 16 Quentin State Prison, the same [Dr. Troup] forgot about his prior 3-19-2011 misdiagnosis and 17 re-diagnosed Plaintiff’s old granulomatous disease as ‘ICM right upper lobe nodular opacity.”’ 18 (Id.). “Dr. Troup hid the facts from Plaintiff . . . and did not find out about cocci lung scarring 19 until 3-26-2024 from” two doctors who are not named as defendants, which doctors reviewed 20 new x-rays. (Id. at 12). 21 Under the relevant standards, Plaintiff fails to state a claim for deliberate indifference to 22 his serious medical needs against Dr. Troup and Dr. Nicks. Again, Plaintiff’s allegations that 23 they failed to properly diagnose his condition amount to negligence, rather deliberate 24 indifference to serious medical needs under the Eighth Amendment. See Hutchinson v. United 25 States, 838 F.2d 390, 394 (9th Cir. 1988) (“Mere negligence in diagnosing or treating a medical 26 condition, without more, does not violate a prisoner’s Eighth Amendment rights.”). Plaintiff 27 does not allege that Dr. Troup or Dr. Nicks intentionally or purposefully failed to properly 28 diagnose his condition. Furthermore, Plaintiff fails to allege that the misdiagnoses caused him 1 harm. 2 3. Dr. Davis, Dr. Khan, and Dr. Salm 3 Plaintiff alleges that “from 2021 and 2022 [Dr. Davis, Dr. Khan, and Dr. Salm] gave 4 [him] a misdiagnosis of scabies, dermatitis, eczema, with other skin ailments while being 5 confined at High Desert State Prison.” (ECF No. 1, p. 10). He suffered “much pain and 6 constant ongoing discomfort” and “[h]is condition did worsen.” (Id.). Plaintiff requested a 7 “medical swab of severe rashes” but “his requests were all denied.” (Id.). 8 Under the relevant standards, Plaintiff fails to state a claim against Dr. Davis, Dr. Khan, 9 and Dr. Salm. As explained above in connection with Plaintiff’s other allegations, the failure of 10 any doctor to properly diagnosis Plaintiff’s condition, without more, amounts to negligence, 11 rather than deliberate indifference to serious medical needs. See Hutchinson, 838 F.2d at 394. 12 Moreover, Plaintiff does not provide sufficient facts to indicate that any of these doctors were 13 involved in the denial of his request for a medical swab of his rashes. He also does not allege 14 that the lack of a medical swab caused him harm. 15 4. Dr. Hill, Dr. Covelli, and Dr. Lotersztain 16 Plaintiff alleges that, “[b]y the end of 2022, while at California Correctional Institution, 17 he started to suffer from weight loss, night sweats, rashes that spread with other symptoms that 18 added to his pain and suffering.” (ECF No. 1, p. 11). Plaintiff saw Dr. Hill, “who ordered 19 medical testing and then diagnosed [him] with ‘the Valley Fever.’” (Id.). “She ordered a 20 prescription of Diflucan and after ten months of using said medication, the results were useless. 21 His titer remained at 1:8.”3 (Id.). “By the end of November 2023, [Plaintiff] requested to be put 22 on a stronger medication for his illnesses. He also requested to see a specialist for a second 23 opinion, but said request was denied on 11-13-2023 by [Dr. Covelli and Dr. Lotersztain].” (Id.). 24 When Plaintiff “requested an explanation with medical opinion, Dr. Hill responded that she did 25 not have any medical answers for him.” (Id.). Plaintiff “then asked Dr. Hill how severe the 26 cocci diagnosis was, she replied, ‘medium range.’” (Id.). Plaintiff asked the cause of his 27 28 3 Plaintiff fails to explain the significance of his “titer” results, but the Court presumes that he means that his condition was not improving. 1 symptoms and “Dr. Hill replied, ‘most likely Valley Fever.’” (Id.). “The two years of 2 misdiagnosis of [Plaintiff’s] symptom[s] were intentional medical neglect and a form of 3 medical malpractice, [b]olstered by the fact that he was not even given a prescription for 4 eczema cream until 2024, while at California Correctional Institution.” (Id.). At present, 5 Plaintiff “is still suffering from rashes and other skin irritational symptoms with not one 6 medical remedy that was sufficient for curing his symptoms.” (Id.). 7 Under the relevant standards, Plaintiff fails to state a claim for deliberate indifference to 8 his serious medical needs against Dr. Hill, Dr. Covelli, and Dr. Lotersztain. As for all these 9 doctors, Plaintiff alleges that they acted negligently in failing to provide more effective 10 treatment, rather than with deliberate indifference to his serious medical needs. See Hoang 11 Minh Tran v. Haar, No. CV 10-07740 CJC SS, 2012 WL 37506, at *3 (C.D. Cal. Jan. 9, 2012) 12 (concluding that plaintiff’s allegations that defendants refused to prescribe stronger and more 13 effective medication for his pain reflects only a difference of medical opinion and plaintiff did 14 not state an Eighth Amendment claim). 15 As for Plaintiff’s allegation that Dr. Hill did not have medical answers for him, he fails 16 to explain how this caused him any harm, let alone how Dr. Hill’s lack of answers could equate 17 to a purposeful decision to not treat his medical needs. 18 Lastly, to the extent that Plaintiff alleges that he was not even given a prescription for 19 eczema cream until 2024, he fails to allege that any defendant was involved in this decision or 20 explain how any defendant would have been subjectively aware that their failure to prescribe 21 the cream created a substantial risk of serious harm. 22 5. Dr. Blick and Secretary Macomber 23 Plaintiff alleges that Dr. Blick “is the chief of medical for the [CDCR]” and Secretary 24 Macomber “is the Secretary of CDCR and have allowed prison medical corruption to 25 intentionally take place.” (Id. at 12). 26 Under the relevant standards, Plaintiff fails to state a claim against Dr. Blick and 27 Secretary Macomber. First, Plaintiff does not allege that either Defendant was directly involved 28 in the allegations concerning his Valley Fever diagnosis. Rather, Plaintiff appears sue them in a 1 supervisor capacity based on their positions within CDCR. 2 Supervisory personnel are not liable under § 1983 for the actions of their employees 3 under a theory of respondeat superior and, therefore, when a named defendant holds a 4 supervisory position, the causal link between the supervisory defendant and the claimed 5 constitutional violation must be specifically alleged. Iqbal, 556 U.S. at 676-77; Fayle v. 6 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 7 1978). To state a claim for relief under § 1983 based on a theory of supervisory liability, a 8 plaintiff must allege some facts that would support a claim that the supervisory defendants 9 either: were personally involved in the alleged deprivation of constitutional rights, Hansen v. 10 Black, 885 F.2d 642, 646 (9th Cir. 1989); “knew of the violations and failed to act to prevent 11 them,” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); or promulgated or “implement[ed] a 12 policy so deficient that the policy itself is a repudiation of constitutional rights and is the 13 moving force of the constitutional violation,” Hansen, 885 F.2d at 646 (citations and internal 14 quotation marks omitted). 15 For instance, a supervisor may be liable for his or her “own culpable action or inaction 16 in the training, supervision, or control of his [or her] subordinates,” “his [or her] acquiescence 17 in the constitutional deprivations of which the complaint is made,” or “conduct that showed a 18 reckless or callous indifference to the rights of others.” Larez v. City of Los Angeles, 946 F.2d 19 630, 646 (9th Cir. 1991) (citations, internal quotation marks, and brackets omitted). 20 Under these standards, Plaintiff fails to sufficiently allege that either Dr. Blick or 21 Secretary Macomber had any personal involvement with the alleged deprivations of his 22 constitutional rights or implemented a policy that was the moving force behind the violations. 23 IV. FAILURE TO PROSECUTE AND COMPLY WITH COURT ORDER 24 The Court will likewise recommend dismissal based on Plaintiff’s failure to prosecute 25 this case and to comply with the Court’s screening order (and later order extending the time to 26 respond). (ECF Nos. 7, 9). 27 In determining whether to dismiss a[n] [action] for failure to prosecute or failure to comply with a court order, the Court must weigh the following factors: (1) the 28 public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the 1 availability of less drastic alternatives; and (5) the public policy favoring 2 disposition of cases on their merits. 3 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 4 1258, 1260-61 (9th Cir. 1992)). 5 “‘The public’s interest in expeditious resolution of litigation always favors dismissal.’” 6 Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Therefore, the 7 first factor weighs in favor of dismissal. 8 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 9 determine whether the delay in a particular case interferes with docket management and the 10 public interest. . . . It is incumbent upon the Court to manage its docket without being subject to 11 routine noncompliance of litigants. . . .” Id. (citations omitted). Plaintiff has failed to respond to 12 the Court’s screening order despite being given an extension of time to do so. (ECF Nos. 7, 9). 13 This failure to respond is delaying the case and interfering with docket management. Therefore, 14 the second factor weighs in favor of dismissal. 15 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 16 and of itself to warrant dismissal.” Id. (citing Yourish, 191 F.3d at 991). However, “delay 17 inherently increases the risk that witnesses’ memories will fade and evidence will become 18 stale,” id. at 643, and it is Plaintiff’s failure to comply with a court order and to prosecute this 19 case that is causing delay. Therefore, the third factor weighs in favor of dismissal. 20 As for the availability of lesser sanctions, given that Plaintiff has chosen not to 21 prosecute this action and has failed to comply with the Court’s order, despite being warned of 22 possible dismissal, there is little available to the Court which would constitute a satisfactory 23 lesser sanction while protecting the Court from further unnecessary expenditure of its scarce 24 resources. Considering Plaintiff’s in forma pauperis status, it appears that monetary sanctions 25 are of little use to prompt him to comply with future orders. And given the stage of these 26 proceedings, the preclusion of evidence or witnesses is not available. Further, as noted above, 27 Plaintiff has failed to state a claim or respond to the Court’s screening order despite being given 28 the relevant legal standards and the opportunity to file an amended complaint. Thus, the lack of 1 || any viable claim supports a dismissal with prejudice rather than a lesser sanction. Therefore, 2 || the fourth factor weighs in favor of dismissal. 3 Finally, because public policy favors disposition on the merits, this final factor weighs 4 || against dismissal. Jd. 5 After weighing the factors, the Court concludes that dismissal with prejudice is 6 || appropriate. 7 V. ORDER, CONCLUSION, AND RECOMMENDATIONS 8 Accordingly, IT IS ORDERED that the Clerk of Court is directed to assign a District 9 || Judge to this case. 10 Further, IT IS RECOMMENDED as follows: 11 1. This action be dismissed, with prejudice, for failure to state a claim, failure to 12 prosecute, and failure to comply with a court order. 13 2. The Clerk of Court be directed to close this case. 14 These findings and recommendations are submitted to the United States District Judge 15 || assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty 16 || (30) days after being served with these findings and recommendations, Plaintiff may file 17 || written objections with the Court. Such a document should be captioned “Objections to 18 || Magistrate Judge’s Findings and Recommendations.” Any objections shall be limited to no 19 || more than fifteen (15) pages, including exhibits. 20 Plaintiff is advised that failure to file objections within the specified time may result in 21 || the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 22 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 IT IS SO ORDERED. Dated: _ December 22, 2025 [sf hey □□ 25 UNITED STATES MAGISTRATE JUDGE 26 27 28 12