Jose O. Arteaga v. John Does #2-15

Opinion

5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE O. ARTEAGA, Case No. 1:25-cv-00357-KES-EPG (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION BE 13 v. DISMISSED WITH PREJUDICE FOR FAILURE TO STATE A CLAIM, FAILURE TO 14 JOHN DOES #2-15, PROSECUTE, AND FAILURE TO COMPLY WITH A COURT ORDER 15 Defendants. (ECF Nos. 17, 20, 22) 16

OBJECTIONS, IF ANY, DUE WITHIN THIRTY 17 DAYS

18 Plaintiff Jose O. Arteaga is a state prisoner proceeding pro se and in forma pauperis in 19 this civil rights action filed pursuant to 41 U.S.C. § 1983. Plaintiff originally filed a one-hundred- 20 and-seventy-one-page complaint on October 11, 2022, alleging numerous claims against 21 numerous defendants.1 (ECF No. 1). On February 25, 2025, the district judge ordered that 22 “Plaintiff’s claims against John Doe defendants based on events after plaintiff’s placement in 23 administrative segregation in February 2019 [ECF No. 1 at p. 14-21] shall be severed from this 24 action and proceed in a new action.” (ECF No. 5 at p. 2). As such, the district judge ordered the 25 underlying case be opened to address these severed claims. (Id.). 26 27 1 Plaintiff’s complaint was first filed in Arteaga v. Garcia, et al., 1:22-cv-1292-KES-EPG (PC) (E.D. 28 Cal.). 1 On January 22, 2026, the Court screened the severed complaint and concluded that 2 Plaintiff failed to state any cognizable claims. (ECF No. 17). The Court gave Plaintiff thirty days 3 to file a first amended complaint or to notify the Court that he wanted to stand on his complaint. 4 (Id. at p. 10). Thereafter, the Court granted Plaintiff a thirty-day extension to respond to the screening order, warning that “Plaintiff must file a response to the Screening Order no later than 5 April 10, 2026, or the Court will issue findings and recommendations that this case be 6 dismissed.” (ECF No. 20 (emphasis in original)). 7 On April 2, 2026, Plaintiff filed a Motion to Proceed Against Doe’s Real Name and Stand 8 on Original Claims. (ECF No. 21). The Court reviewed the motion and found that it did not relate 9 to the claims pending in this case and provided leave for Plaintiff to file an amended complaint 10 concerning the issues of administrative segregation. (ECF No. 22). Granting additional time, the 11 Court ordered that “Plaintiff must file an amended complaint until no later than May 4, 2026,” 12 warning “[o]therwise, the Court will recommend dismissal of the complaint for the reasons stated 13 in its Screening Order.” (Id. emphasis in original)). 14 The extended deadline to respond to the screening order has expired, and Plaintiff has not 15 filed an amended complaint or otherwise responded to the Court’s order. Accordingly, for the 16 reasons given below, the Court will recommend that Plaintiff’s case be dismissed, with prejudice, 17 for failure to state a claim, failure to prosecute, and failure to comply with a court order. 18 I. SCREENING REQUIREMENT 19 The Court is required to screen complaints brought by prisoners seeking relief against a 20 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 21 Court must dismiss a complaint, or a portion of it, if the prisoner has raised claims that are 22 frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek 23 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). Additionally, as Plaintiff is proceeding in forma pauperis (ECF No. 14), the Court may screen the 24 complaint under 28 U.S.C. § 1915. “Notwithstanding any filing fee, or any portion thereof, that 25 may have been paid, the court shall dismiss the case at any time if the court determines that the 26 action or appeal fails to state a claim upon which relief may be granted.” 28 U.S.C. § 27 1915(e)(2)(B)(ii). 28 1 A complaint is required to contain “a short and plain statement of the claim showing that 2 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 3 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 4 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A plaintiff must set forth “sufficient 5 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 6 (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting 7 this plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts “are 8 not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 9 681 (9th Cir. 2009) (citation and internal quotation marks omitted). Additionally, a plaintiff’s 10 legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 11 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 12 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 13 pro se complaints should continue to be liberally construed after Iqbal). 14 II. SUMMARY OF PLAINTIFF’S COMPLAINT 15 As noted earlier, this case only concerns Plaintiff’s claims arising after he was placed in 16 administrative segregation in February 2019, which were severed from a separate case. 17 Accordingly, the Court only summarizes the events described in the complaint after Plaintiff’s 18 placement in administrative segregation in February 2019. 19 Plaintiff alleges that, in February of 2019, he was placed in administrative segregation for 20 a period of about eight months. During this time, Plaintiff suffered “painful, t[ortu]ous, constant 21 retaliatory practices by then correctional officers responsible for passing out state meals” and 22 “also the staff who are responsible for giving this prisoner[’]s medical attention.” (ECF No. 1 at 23 p. 16). Plaintiff alleges that he was continuously ill from the “state food” served to him and that he would report this to “medical staff,” but they ignored any 7362 (medical) request regarding 24 illness from the food. (Id.). Plaintiff was “forced to file a petition for writ of habeas corpus as a 25 desperate intent to make them stop the abuses mistreatment of them tampering with [Plaintiff’s] 26 state meals.” (Id. at p. 20). Plaintiff developed a rash all over his body and was taken to a 27 dermatologist due to the painful rash and hair loss. (Id. at p. 16). Plaintiff also suffered stomach 28 1 pains, headaches, and intestinal pain in the liver and kidney. Plaintiff alleges that these reactions 2 are caused by chemical contaminants. (Id.). Plaintiff alleges that medical would act as if Plaintiff 3 was not experiencing these symptoms. Plaintiff’s only effective medicine was to force himself to 4 vomit the food. (Id.). Plaintiff stopped consuming a lot of his provided meals and was forced to purchase food 5 from the canteen prison store to stay alive. (Id. at p. 17). Plaintiff was not aware of how long he 6 would be housed in administrative segregation. (Id.). At the time, Plaintiff hoped that the money 7 in his account would not run out. However, when Plaintiff was ordered to pay a court fee in 8 another § 1983 civil case, he was unable to do so. (Id.). Plaintiff was cautious to not run out of 9 money while in administrative segregation. Plaintiff was not able to make the court aware of his 10 situation for fear of continued and worsening retaliation. (Id.). A prior civil rights complaint was 11 dismissed without prejudice due to Plaintiff’s inability to pay the filing fees requested. Thus, 12 Plaintiff was forced to wait for a better time to file the § 1983 action. (Id. at p. 17). 13 Due to the cruel and continuous retaliation against Plaintiff, he was forced to file a 14 petition for a writ of habeas corpus, (see id. at 49-51 (Plaintiff’s Exhibit # 3)), in a desperate 15 attempt to make them stop the abuses, mistreatment, and tampering of Plaintiff’s state meals that 16 Plaintiff was constitutionally entitled to. (Id. at p. 20). But even this request for justice did not 17 stop the mistreatment. The abuses continued without any regard to prison rules, human suffering, 18 or the consequences of violating prison policy. Although Plaintiff filed a CDC-602 complaint, it 19 did not work to stop the constant retaliatory practices. (Id. at p. 20). 20 One of the exhibits attached to the complaint is a dermatology report dated September 3, 21 2019, which concerns Plaintiff’s reports of “a rash located on the scalp, abdomen, chest, groin 22 and legs,” “hair loss,” and “nail changes.” (Id. at p. 45-47). According to the document, “the 23 diagnosis is most consistent with alopecia reata,”2 and management options were “topical and systemic corticosteroids, intralesional corticosteroids, phototherapy.” (Id. at p. 46). It also reports 24 and Plaintiff “opted to proceed with the following treatment: 1. Requesting ILK to scalp at 25 26 2 Although not included in the complaint, the Court notes that the Cleveland Clinic defines this as 27 “Alopecia areata is an autoimmune disease that attacks your body’s hair follicles, causing patchy hair loss.” https://myclevelandclinic.org/-/scassets/images/org/health/articles/12423-clopecia-areata, visited on 28 January 21, 2026. 1 follow-up[;] 2. Clobeatsol 0.05% solution.” 2 Plaintiff also attaches a 602 grievance form dated July 30, 2019 (see id. at pp. 52-65 3 (Plaintiff’s Exhibit #4)), and fifty-nine 7362 California Department of Corrections and 4 Rehabilitation (“CDCR”) Medical Request Form copies that Plaintiff filed (see id. at pp. 69-154 (Plaintiff’s Exhibit #6)).3 (Id. at p. 21). 5 Plaintiff asserts his claims against correctional officers identified as “John Doe #2-12” 6 who were “responsible for making assure [sic] that prisoners received untampered, healthy state 7 meals were instead making sure that Plaintiff receive[d] contaminated, harmful, and bad meals to 8 cause sickness and mistreatment” as retaliation for filing previous grievances. (Id. at p. 5). 9 Plaintiff also asserts claims against medical staff “John Does #13 through 15” who worked in 10 administrative segregation in Corcoran.” (Id. at p. 6). 11 III. ANALYSIS OF PLAINTIFF’S COMPLAINT 12 A. Section 1983 13 The Civil Rights Act under which this action was filed provides as follows: 14 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 to 15 be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 16 secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 17 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 18 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 19 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also 20 Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 21 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 22 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 23 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under 24 color of state law, and (2) the defendant deprived him of rights secured by the Constitution or 25 federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also Marsh 26 v. County of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of state 27

28 3 The Court notes that the documents included in this exhibit are mostly illegible. 1 law”). A person deprives another of a constitutional right, “within the meaning of § 1983, ‘if he 2 does an affirmative act, participates in another’s affirmative act, or omits to perform an act which 3 he is legally required to do that causes the deprivation of which complaint is made.’” Preschooler 4 II v. Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be established 5 when an official sets in motion a ‘series of acts by others which the actor knows or reasonably 6 should know would cause others to inflict’ constitutional harms.” Preschooler II, 479 F.3d at 7 1183 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles the 8 standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int’l Bus. Mach. Corp., 637 9 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 1026 10 (9th Cir. 2008). 11 A plaintiff must demonstrate that each named defendant personally participated in the 12 deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there must be an actual 13 connection or link between the actions of the defendants and the deprivation alleged to have been 14 suffered by the plaintiff. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 691, 695 15 (1978). 16 B. Conditions of Confinement in Violation of the Eighth Amendment 17 “It is undisputed that the treatment a prisoner receives in prison and the conditions under 18 which [the prisoner] is confined are subject to scrutiny under the Eighth Amendment.” Helling v. 19 McKinney, 509 U.S. 25, 31 (1993); see also Farmer v. Brennan, 511 U.S. 825, 832 (1994). 20 Conditions of confinement may, consistent with the Constitution, be restrictive and harsh. See 21 Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th 22 Cir. 2006); Osolinski v. Kane, 92 F.3d 934, 937 (9th Cir. 1996); Jordan v. Gardner, 986 F.2d 23 1521, 1531 (9th Cir. 1993) (en banc). Prison officials must, however, provide prisoners with “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 24 801 F.2d 1080, 1107 (9th Cir. 1986), abrogated in part on other grounds by Sandin v. Connor, 25 515 U.S. 472 (1995); see also Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000); Hoptowit v. 26 Ray, 682 F.2d 1237, 1246 (9th Cir. 1982); Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir. 27 1981). 28 1 Two requirements must be met to show an Eighth Amendment violation. Farmer, 511 2 U.S. at 834. “First, the deprivation alleged must be, objectively, sufficiently serious.” Id. (citation 3 and internal quotation marks omitted). Second, “a prison official must have a sufficiently culpable 4 state of mind,” which for conditions of confinement claims “is one of deliberate indifference.” Id. (citations and internal quotation marks omitted). Prison officials act with deliberate indifference 5 when they know of and disregard an excessive risk to inmate health or safety. Id. at 837. The 6 circumstances, nature, and duration of the deprivations are critical in determining whether the 7 conditions complained of are grave enough to form the basis of a viable Eighth Amendment 8 claim. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2006). Mere negligence on the part of a 9 prison official is not sufficient to establish liability, but rather, the official’s conduct must have 10 been wanton. Farmer, 511 U.S. at 835; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). 11 “Adequate food is a basic human need protected by the Eighth Amendment.” Keenan, 83 12 F.3d at 1091. “[I]mates rely on prison officials to provide them with adequate sustenance on a 13 daily basis.” Foster v. Runnels, 554 F.3d 807, 814 (9th Cir. 2009). However, the food served in 14 prisons is only required to be “adequate to maintain health” and does not need to be “tasty or 15 aesthetically pleasing.” LeMaire v. Maass 12 F.3d 1444, 1456 (9th Cir. 1993). 16 Plaintiff’s complaint fails to state a cognizable claim for violation of conditions of 17 confinement under these legal standards. Plaintiff repeatedly asserts that he received 18 “contaminated harmful and bad meals to cause sickness.” However, Plaintiff fails to provide any 19 facts supporting this claim. Plaintiff does not allege that he saw anyone contaminate the food. 20 Plaintiff does not allege that he noticed anything about the food that indicated that it was 21 contaminated. Plaintiff does not allege that he heard anyone say that the food was contaminated. 22 Plaintiff does not allege that any doctor told him that he was getting ill due to contaminated food. 23 On the contrary, the one medical document that is attached diagnosed Plaintiff’s illness as alopecia reata and provided Plaintiff with topical medication and steroids to treat it. Plaintiff also 24 fails to provide sufficient facts regarding the allegedly contaminated food. Plaintiff does not 25 describe any meals with any specificity, such as what was provided, when it was provided, and 26 how Plaintiff reacted to the food. 27 \\\ 28 1 Plaintiff also fails to allege any facts indicating that any defendant caused the food to be 2 contaminated, or that they did so intentionally. Plaintiff does not identify any defendant, either by 3 name or description. Instead, he names “John Doe #2-12” as defendants because they were 4 “responsible for making assure [sic] that prisoners received untampered, healthy state meals” but “instead [were] making sure that Plaintiff receive[d] contaminated, harmful and bad meals to 5 cause sickness and mistreatment” to retaliate and torture Plaintiff. (Id. at p. 5). But this 6 description does not identify any person, whether by name or characteristics. Nor does it provide 7 any facts that, if true, would indicate that such person contaminated his food. Plaintiff also fails to 8 state any facts that would show that any person acted with deliberate indifference to his safety. 9 For these reasons, the Court recommends dismissal for failure to state a cognizable claim 10 that unidentified Doe Defendants caused all of Plaintiff’s food in administrative segregation to be 11 contaminated. 12 C. Deliberate Indifference to Serious Medical Needs in Violation of the Eighth 13 Amendment 14 “[T]o maintain an Eighth Amendment claim based on prison medical treatment, an inmate 15 must show ‘deliberate indifference to serious medical needs.’” Jett v. Penner, 439 F.3d 1091, 16 1096 (9th Cir. 2006) (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). Deliberate 17 indifference to a prisoner’s medical issue is established only where the Defendant subjectively 18 “knows of and disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 19 F.3d 1051, 1057 (9th Cir. 2004) (citation omitted). This requires Plaintiff to show (1) “a ‘serious 20 medical need’ by demonstrating that ‘failure to treat a prisoner’s condition could result in further 21 significant injury or the unnecessary and wanton infliction of pain,’” and (2) that “the defendant’s 22 response to the need was deliberately indifferent.” Id. (quoting McGuckin v. Smith, 974 F.2d 23 1050, 1059-60 (9th Cir. 1992)), overruled on other grounds by WMX Technologies v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). 24 Deliberate indifference can be established “by showing (a) a purposeful act or failure to 25 respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference.” 26 Jett, 439 F.3d at 1096 (citation omitted). 27 \\\ 28 1 As to the subjective standard, a prison official or prison medical provider acts with 2 “deliberate indifference…only if the [prison official] knows of and disregards an excessive risk to 3 inmate health and safety.” Gibson v. Cnty. of Washoe, Nev., 290 F.3d 1175, 1187 (9th Cir. 2002) 4 (citation and internal quotation marks omitted). “Under this standard, the prison official must not 5 only ‘be aware of facts from which the inference could be drawn that a substantial risk of serious 6 harm exists,’ but that person ‘must also draw the inference.’” Toguchi v. Chung, 391 F.3d 101, 7 1057 (9th Cir. 2004) (citation omitted). “If a [prison official] should have been aware of the risk, 8 but was not, then the [official] has not violated the Eighth Amendment, no matter how serious the 9 risk.” Gibson, 290 F.3d at 1188 (citation omitted). 10 “[T]he indifference to a [prisoner’s] medical needs must be substantial. Mere 11 ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this [claim].” Broughton v. 12 Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (citations omitted). “Even gross negligence is 13 insufficient to establish deliberate indifference to serious medical needs.” Lemire v. Cal. Dep’t. of 14 Corrections and Rehabilitation, 726 F.3d 1062, 1082 (9th Cir. 2013). 15 Plaintiff’s complaint states that “Plaintiff was continuously getting sick and ill from the 16 state food given to him by custody which he would report this to medical staff in vain, since they 17 would ignore any (7362) regarding getting sick from meals.” (ECF No. 1, at p. 16). However, this 18 allegation fails to set forth a constitutional claim for deliberate indifference to serious medical 19 needs. It does not identify any medical provider who purposefully failed to treat his medical 20 condition. On the contrary, Plaintiff alleges and attaches evidence of seeing a dermatologist who 21 treated his symptoms. Nor does Plaintiff allege that any medical provider believed that he was 22 eating contaminated food, had the ability to change that food, and yet failed to do so. 23 As before, Plaintiff also fails to identify any specific person, either by name or 24 description. Instead, Plaintiff sues “John Does #13 through 15 who worked in administrative 25 segregation in Corcoran.” (Id. at p. 6). This description is not sufficient to identify any person 26 who acted with deliberate indifference to his serious medical needs. 27 Accordingly, the Court recommends dismissal for failure to state a cognizable claim for 28 deliberate indifference to serious medical needs against John Doe Defendants #13-15. 1 D. Retaliation in Violation of the First Amendment 2 Plaintiff repeatedly states that he suffered from retaliation while in administrative 3 segregation. 4 Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action 5 against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) 6 the action did not reasonably advance a legitimate correctional goal. 7 Rhodes, 408 F.3d at 567–68 (footnote and citations omitted). To prevail on a retaliation claim, a 8 plaintiff may “assert an injury no more tangible than a chilling effect on First Amendment rights.” 9 Brodheim v. Cry, 584 F.3d 1262, 1269-70 (9th Cir. 2009). Furthermore, “a plaintiff does not have 10 to show that ‘his speech was actually inhibited or suppressed,’ but rather that the adverse action at issue ‘would chill or silence a person of ordinary firmness from future First Amendment 11 activities.’” Id. at 1271 (citing Rhodes, 408 F.3d at 568–69) (emphasis in original). “Evidence of 12 his motive may include: (1) proximity in time between the protected conduct and the alleged 13 retaliation; (2) defendant’s expressed opposition to the protected conduct; and (3) other evidence 14 showing that defendant’s reasons for the challenged action were false or pretextual.” Barth v. 15 Montejo, No. 2:19-CV-1874 DB P, 2020 WL 73407, at *2 (E.D. Cal. Jan. 7, 2020). 16 Plaintiff’s complaint fails to state any facts supporting a claim for retaliation under these 17 constitutional standards. Plaintiff does not describe any adverse action by any specific person. 18 Nor does he allege any facts indicating that someone took an adverse action due to Plaintiff 19 engaging in constitutionally protected conduct. Indeed, as with the other claims, Plaintiff fails to 20 identify any specific person who allegedly engaged in retaliation. 21 The Court recommends dismissal for failure to state a claim for retaliation in violation of 22 the First Amendment. 23 IV. FAILURE TO PROSECUTE AND COMPLY WITH COURT ORDER 24 The Court will likewise recommend dismissal based on Plaintiff’s failure to prosecute this 25 case and to comply with the Court’s orders extending the time to respond to the screening order. 26 (ECF Nos. 20, 22). 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 1 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 2 availability of less drastic alternatives; and (5) the public policy favoring 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.’” Id. 6 (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Therefore, the first 7 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 orders granting extensions of time to respond to the screening order. (ECF Nos. 20, 13 22). This failure to respond is delaying the case and interfering with docket management. 14 Therefore, 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 stale,” 18 id. at 643, and it is Plaintiff’s failure to comply with a court order and to prosecute this case that 19 is causing delay. Therefore, the third factor weighs in favor of dismissal. As for the availability of lesser sanctions, given that Plaintiff has chosen not to prosecute 20 this action and has failed to comply with the Court’s order, despite being warned of possible 21 dismissal, there is little available to the Court which would constitute a satisfactory lesser 22 sanction while protecting the Court from further unnecessary expenditure of its scarce resources. 23 Considering Plaintiff’s in forma pauperis status, it appears that monetary sanctions are of little 24 use to prompt him to comply with future orders. And given the stage of these proceedings, the 25 preclusion of evidence or witnesses is not available. Further, as noted above, Plaintiff has failed 26 to state a claim or respond to the Court’s screening order despite being given the relevant legal 27 standards and the opportunity to file an amended complaint. Thus, the lack of any viable claim 28 1 | supports a dismissal with prejudice rather than a lesser sanction. Therefore, the fourth factor 2 | weighs in favor of dismissal. 3 Finally, because public policy favors disposition on the merits, this final factor weighs 4 | against dismissal. /d. 5 After weighing the factors, the Court concludes that dismissal with prejudice is 6 appropriate. 7 V. ORDER, CONCLUSION, AND RECOMMENDATIONS g Accordingly, IT IS RECOMMENDED as follows:

9 1. This action be dismissed, with prejudice, for failure to state a claim, failure to prosecute, and failure to comply with a court order. " 2. The Clerk of Court be directed to close this case. " These findings and recommendations are submitted to the United States District Judge 2 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) 13 days after being served with these findings and recommendations, Plaintiff may file written objections with the Court. Such a document should be captioned “Objections to Magistrate I5 Judge’s Findings and Recommendations.” Any objections shall be limited to no more than fifteen 16 (15) pages, including exhibits. 17 Plaintiff is advised that failure to file objections within the specified time may result in the 18 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing 19 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 20 > IT IS SO ORDERED.

Dated: _ May 20, 2026 [Je hy □ 73 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 12