1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 JENNIFER MENDOZA, Case No. 1:19-cv-01500-DAD-EPG 11 Plaintiff, FINDINGS AND RECOMMENDATIONS, 12 RECOMMENDING THAT THIS CASE BE 13 v. DISMISSED WITHOUT PREJUDICE FOR PLAINTIFF’S FAILURE TO STATE A
14 CITY OF FRESNO, et al., CLAIM, FAILURE TO COMPLY WITH THE COURT’S ORDER, AND FAILURE TO 15 Defendants. PROSECUTE 16 (ECF No. 8) 17 OBJECTIONS, IF ANY, DUE WITHIN 18 TWENTY-ONE (21) DAYS
19 20 Plaintiff, Jennifer Mendoza, is proceeding pro se and in forma pauperis in this action brought pursuant to 28 U.S.C. § 1983. The Complaint, filed October 23, 2019, alleges that the 21 City of Fresno, Adam Estrada, Matthew Clifton, Scott Payn, Kenda Navarro, and Sharon 22 Takayama violated Plaintiff’s constitutional rights when Defendant Adam Estrada entered her 23 home without her consent. (ECF No. 1.) 24 On February 11, 2020, the Court screened the Complaint and found that it fails to state a 25 cognizable claim against Defendants. (ECF No. 8.) The Court gave Plaintiff thirty days from the 26 date of service of the screening order to file an amended complaint or to notify the Court that she 27 wishes to stand on the Complaint, subject to findings and recommendations to the district judge 28 1 consistent with the screening order. (Id.) The Court also warned Plaintiff that failure to file an 2 amended complaint or to notify the Court that she wishes to stand on the Complaint could result 3 in the dismissal of this case. (Id. at 9.) The thirty-day period has expired, and Plaintiff has not 4 filed an amended complaint or notified the Court that she wishes to stand on the Complaint. For the reasons described below, the Court recommends that this action be dismissed, 5 without prejudice, for Plaintiff’s failure to state a claim upon which relief may be granted, failure 6 to comply with a court order, and failure to prosecute. 7 Plaintiff may file objections to these findings and recommendations within twenty-one 8 days from the date of service of this order. 9 I. LEGAL STANDARDS 10 Under 28 U.S.C. § 1915(e)(2), in any case in which a plaintiff is proceeding in forma 11 pauperis, the Court must conduct a review of the claims brought by the plaintiff to determine 12 whether it “state[s] a claim on which relief may be granted,” is “frivolous or malicious,” or 13 “seek[s] monetary relief against a defendant who is immune from such relief.” If the Court 14 determines that the complaint fails to state a claim on which relief may be granted, it must be 15 dismissed. Id. Similarly, if the Court determines the complaint is frivolous or malicious, it must 16 be dismissed. Id. An action is deemed to be frivolous if it is “of little weight or importance: 17 having no basis in law or fact” and malicious if it was filed with the “intention or desire to harm 18 another.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). Leave to amend may be granted 19 to the extent that the deficiencies of the complaint can be cured by amendment. Cato v. United 20 States, 70 F.3d 1103, 1106 (9th Cir. 1995). 21 A complaint must contain “a short and plain statement of the claim showing that the 22 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 23 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 24 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual 25 matter, accepted as true, to ‘state a claim that is plausible on its face.’” Iqbal, 556 U.S. at 663 26 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal 27 conclusions are not. Id. at 678. 28 1 In determining whether a complaint states an actionable claim, the Court must accept the 2 allegations in the complaint as true, Hosp. Bldg. Co. v. Trs. of Rex Hospital, 425 U.S. 738, 740 3 (1976), construe pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick v. 4 Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). Pleadings of pro se plaintiffs “must be held to less 5 stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 6 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally construed after 7 Iqbal). 8 II. PLAINTIFF’S ALLEGATIONS 9 The Complaint alleges the following: On July 8, 2018, an acquaintance of Plaintiff lost 10 items at Plaintiff’s apartment. When the acquaintance could not locate those items, she called the 11 police and said she had been assaulted by a female on drugs and that this female was in Plaintiff’s 12 apartment. The police came to Plaintiff’s apartment with the apartment complex’s manager, who 13 had a key to Plaintiff’s apartment. The manager opened the door and asked police to wait outside 14 while she checked on Plaintiff. The manager made contact with Plaintiff in the living room. The 15 manager and Plaintiff then proceeded to the front door. Officer Estrada was standing outside the 16 front door and was making comments about how Plaintiff’s apartment looked. Officer Estrada 17 asked if they could come in and Plaintiff told him, “no,” because her apartment was a mess. 18 Officer Estrada entered into Plaintiff’s home without her consent as Plaintiff did not give the 19 officer permission to enter her apartment. 20 For relief, Plaintiff is seeking to have “the ruling of a lower court to be reversed”; “for 21 evidence against me be dismissed which is the reason protective service took my children”; and 22 for monetary damages for violation of her right to be free from unreasonable search and seizure. 23 (ECF No. 1 at 5-6.) III. SECTION 1983 24 The Civil Rights Act under which this action was filed provides: 25 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of 26 any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the 27 deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper 28 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, 490 3 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also 4 Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d 1059, 1068 (9th Cir.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 JENNIFER MENDOZA, Case No. 1:19-cv-01500-DAD-EPG 11 Plaintiff, FINDINGS AND RECOMMENDATIONS, 12 RECOMMENDING THAT THIS CASE BE 13 v. DISMISSED WITHOUT PREJUDICE FOR PLAINTIFF’S FAILURE TO STATE A
14 CITY OF FRESNO, et al., CLAIM, FAILURE TO COMPLY WITH THE COURT’S ORDER, AND FAILURE TO 15 Defendants. PROSECUTE 16 (ECF No. 8) 17 OBJECTIONS, IF ANY, DUE WITHIN 18 TWENTY-ONE (21) DAYS
19 20 Plaintiff, Jennifer Mendoza, is proceeding pro se and in forma pauperis in this action brought pursuant to 28 U.S.C. § 1983. The Complaint, filed October 23, 2019, alleges that the 21 City of Fresno, Adam Estrada, Matthew Clifton, Scott Payn, Kenda Navarro, and Sharon 22 Takayama violated Plaintiff’s constitutional rights when Defendant Adam Estrada entered her 23 home without her consent. (ECF No. 1.) 24 On February 11, 2020, the Court screened the Complaint and found that it fails to state a 25 cognizable claim against Defendants. (ECF No. 8.) The Court gave Plaintiff thirty days from the 26 date of service of the screening order to file an amended complaint or to notify the Court that she 27 wishes to stand on the Complaint, subject to findings and recommendations to the district judge 28 1 consistent with the screening order. (Id.) The Court also warned Plaintiff that failure to file an 2 amended complaint or to notify the Court that she wishes to stand on the Complaint could result 3 in the dismissal of this case. (Id. at 9.) The thirty-day period has expired, and Plaintiff has not 4 filed an amended complaint or notified the Court that she wishes to stand on the Complaint. For the reasons described below, the Court recommends that this action be dismissed, 5 without prejudice, for Plaintiff’s failure to state a claim upon which relief may be granted, failure 6 to comply with a court order, and failure to prosecute. 7 Plaintiff may file objections to these findings and recommendations within twenty-one 8 days from the date of service of this order. 9 I. LEGAL STANDARDS 10 Under 28 U.S.C. § 1915(e)(2), in any case in which a plaintiff is proceeding in forma 11 pauperis, the Court must conduct a review of the claims brought by the plaintiff to determine 12 whether it “state[s] a claim on which relief may be granted,” is “frivolous or malicious,” or 13 “seek[s] monetary relief against a defendant who is immune from such relief.” If the Court 14 determines that the complaint fails to state a claim on which relief may be granted, it must be 15 dismissed. Id. Similarly, if the Court determines the complaint is frivolous or malicious, it must 16 be dismissed. Id. An action is deemed to be frivolous if it is “of little weight or importance: 17 having no basis in law or fact” and malicious if it was filed with the “intention or desire to harm 18 another.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). Leave to amend may be granted 19 to the extent that the deficiencies of the complaint can be cured by amendment. Cato v. United 20 States, 70 F.3d 1103, 1106 (9th Cir. 1995). 21 A complaint must contain “a short and plain statement of the claim showing that the 22 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 23 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 24 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual 25 matter, accepted as true, to ‘state a claim that is plausible on its face.’” Iqbal, 556 U.S. at 663 26 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal 27 conclusions are not. Id. at 678. 28 1 In determining whether a complaint states an actionable claim, the Court must accept the 2 allegations in the complaint as true, Hosp. Bldg. Co. v. Trs. of Rex Hospital, 425 U.S. 738, 740 3 (1976), construe pro se pleadings liberally in the light most favorable to the Plaintiff, Resnick v. 4 Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). Pleadings of pro se plaintiffs “must be held to less 5 stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 6 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally construed after 7 Iqbal). 8 II. PLAINTIFF’S ALLEGATIONS 9 The Complaint alleges the following: On July 8, 2018, an acquaintance of Plaintiff lost 10 items at Plaintiff’s apartment. When the acquaintance could not locate those items, she called the 11 police and said she had been assaulted by a female on drugs and that this female was in Plaintiff’s 12 apartment. The police came to Plaintiff’s apartment with the apartment complex’s manager, who 13 had a key to Plaintiff’s apartment. The manager opened the door and asked police to wait outside 14 while she checked on Plaintiff. The manager made contact with Plaintiff in the living room. The 15 manager and Plaintiff then proceeded to the front door. Officer Estrada was standing outside the 16 front door and was making comments about how Plaintiff’s apartment looked. Officer Estrada 17 asked if they could come in and Plaintiff told him, “no,” because her apartment was a mess. 18 Officer Estrada entered into Plaintiff’s home without her consent as Plaintiff did not give the 19 officer permission to enter her apartment. 20 For relief, Plaintiff is seeking to have “the ruling of a lower court to be reversed”; “for 21 evidence against me be dismissed which is the reason protective service took my children”; and 22 for monetary damages for violation of her right to be free from unreasonable search and seizure. 23 (ECF No. 1 at 5-6.) III. SECTION 1983 24 The Civil Rights Act under which this action was filed provides: 25 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of 26 any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the 27 deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper 28 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, 490 3 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also 4 Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); 5 Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 6 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under 7 color of state law, and (2) the defendant deprived him of rights secured by the Constitution or 8 federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also Marsh 9 v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of state 10 law”). A person deprives another of a constitutional right, “within the meaning of § 1983, ‘if he 11 does an affirmative act, participates in another's affirmative act, or omits to perform an act which 12 he is legally required to do that causes the deprivation of which complaint is made.’” Preschooler 13 II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting Johnson v. Duffy, 14 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be established when an 15 official sets in motion a ‘series of acts by others which the actor knows or reasonably should 16 know would cause others to inflict’ constitutional harms.” Preschooler II, 479 F.3d at 1183 17 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles the standard 18 ‘foreseeability’ formulation of proximate cause.” Arnold v. Int'l Bus. Mach. Corp., 637 F.2d 19 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 20 2008). 21 Additionally, a plaintiff must demonstrate that each named defendant personally 22 participated in the deprivation of her rights. Iqbal, 556 U.S. at 676-77. In other words, there must 23 be an actual connection or link between the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 24 691, 695 (1978). 25 IV. ANALYSIS OF PLAINTIFF’S CLAIMS 26 A. Claims Against City of Fresno 27 “[A] local government may not be sued under § 1983 for an injury inflicted solely by its 28 1 employees or agents.” Monell, 436 U.S. at 694. Instead, a governmental entity may be held liable 2 under § 1983 only where a policy, practice, or custom of the entity can be shown to be a moving 3 force behind a violation of constitutional rights. Id. (“Instead, it is when execution of a 4 government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity 5 is responsible under § 1983.”). 6 To state a claim for governmental entity liability under § 1983, a plaintiff must allege 7 facts demonstrating “(1) that [the plaintiff] possessed a constitutional right of which he was 8 deprived; (2) that the municipality had a policy; (3) that this policy amounts to deliberate 9 indifference to the plaintiff’s constitutional right; and (4) that the policy is the moving force 10 behind the constitutional violation.” Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432, 11 438 (9th Cir. 1997) (internal quotation marks and citation omitted; alterations in original). 12 Here, Plaintiff has not alleged any policy or custom of the City of Fresno that caused her 13 injury. She has thus failed to state a § 1983 claim against the City of Fresno, and the City of 14 Fresno is therefore subject to dismissal. 15 B. Rooker-Feldman Doctrine 16 Under the Rooker-Feldman doctrine, lower federal courts lack subject matter jurisdiction 17 in “cases brought by state-court losers complaining of injuries caused by state-court judgments 18 rendered before the [federal] district court proceedings commenced and inviting [federal] district 19 court review and rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 20 544 U.S. 280, 284 (2005). In other words, a federal district court generally does not have 21 authority to review state court decisions let alone reverse those decisions. The purpose of this 22 doctrine “is to protect state judgments from collateral federal attack. Because [federal] district 23 courts lack power to hear direct appeals from state court decisions, they must decline jurisdiction whenever they are ‘in essence called upon to review the state court decision.’” Doe & Associates 24 Law Offices v. Napolitano, 252 F.3d 1026, 1030 (9th Cir. 2001) (citing Feldman, 460 U.S. at 482 25 n.16). 26 1. Plaintiff’s Claim Seeking to Reverse Ruling of a State Court 27 Plaintiff is seeking to have this Court reverse a ruling of another court (ECF No. 1 at 5). 28 1 Based on the allegations in the Complaint that Plaintiff’s children were taken by protective 2 services, the other court ruling Plaintiff seeks to have reversed is a state court decision. Under the 3 Rooker-Feldman doctrine, this Court lacks jurisdiction (authority) to review and reverse the state 4 court’s decision. Accordingly, Plaintiff’s claim seeking to reverse the state court decision cannot proceed in this federal court and must be dismissed. To the extent Plaintiff seeks to have the state 5 court decision reviewed, she must do so by filing a timely appeal from that decision in a state 6 appellate court. 7 8 2. Plaintiff’s Claims against Defendants Estrada, Clifton, Payn, Navarro, and 9 Takayama 10 Where a “federal plaintiff does not complain of a legal injury caused by a state court 11 judgment, but rather of a legal injury caused by an adverse party, Rooker–Feldman does not bar 12 jurisdiction.” Noel v. Hall, 341 F.3d 1148, 1163 (9th Cir. 2003). 13 Here, in addition to seeking the have the state court judgment reversed, Plaintiff is also 14 seeking monetary damages against Defendants Estrada, Clifton, Payn, Navarro, and Takayama for violation of Plaintiff’s Fourth Amendment rights to be free from unreasonable search and 15 seizure. The Fourth Amendment claim seeking monetary damages against these individual 16 defendants is not challenging a legal injury caused by a state court judgment but is instead 17 challenging the actions and alleged injury caused by these individual defendants. Accordingly, 18 Rooker-Feldman does not preclude the exercise of jurisdiction over Plaintiff’s Fourth 19 Amendment claim against the individual defendants for money damages. Noel, 341 F.3d at 1163. 20 C. Heck v. Humphrey 21 Under the favorable termination rule laid out in Heck v. Humphrey, 512 U.S. 477, 486-87 22 (1994), to recover damages in a § 1983 action for an alleged constitutional violation that would 23 necessarily imply that a criminal conviction or sentence is invalid, a plaintiff must prove that the 24 conviction or sentence was reversed, expunged, or otherwise invalidated. If the criminal 25 conviction or sentence has not been reversed, expunged, or otherwise invalidated, claims that 26 would necessarily imply the invalidity of the criminal conviction or sentence must be brought in a 27 petition for writ of habeas corpus rather than through a § 1983 case. See id; Muhammad v. Close, 28 540 U.S. 749, 750-751 (2004). 1 Here, Plaintiff alleges that officers searched her apartment in violation of her Fourth 2 Amendment rights, and that this search led to the discovery of evidence that was used against her 3 in another court and resulted in that court ruling against Plaintiff. (ECF No. 1 at 5.) She seeks 4 “dismissal” of this evidence. (Id. at 6.) It is unclear what type of ruling was issued against Plaintiff, but the ruling apparently resulted in Plaintiff’s children being removed from Plaintiff’s 5 custody. 6 If the evidence seized from Plaintiff’s apartment was used in a criminal proceeding, 7 Plaintiff’s Fourth Amendment claim may, if successful, necessarily imply that any resulting 8 conviction or sentence was invalid. As a result, Plaintiff’s Fourth Amendment claim may be 9 barred unless Plaintiff can demonstrate that she was found not guilty, or that any criminal charges 10 against her have been overturned or otherwise ended in her favor. See Heck, 512 U.S. at 486-87 11 (where success in § 1983 action would necessarily implicate the validity of plaintiff’s conviction 12 or the duration of her sentence, plaintiff must first achieve favorable termination of her 13 underlying conviction or sentence). 14 On the other hand, if Plaintiff was not criminally charged and convicted in connection 15 with the search and seizure of evidence seized from her apartment, it appears that the present 16 action would not be barred by Heck’s favorable termination rule. See Heck, 512 U.S. at 487 (If 17 the court “determines that the plaintiff’s action, even if successful, will not demonstrate the 18 invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed 19 to proceed, in the absence of some other bar to the suit.” (footnotes omitted)). 20 V. FAILURE TO PROSECUTE AND COMPLY WITH A COURT ORDER 21 “In determining whether to dismiss [an action] for failure to prosecute or failure to comply 22 with a court order, the Court must weigh the following factors: (1) the public’s interest in 23 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 24 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 25 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 26 “‘The public’s interest in expeditious resolution of litigation always favors dismissal.’” 27 Pagtalunan, 291 F.3d at 642 (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 28 1 1999)). Thus, this factor weighs in favor of dismissal. 2 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 3 and of itself to warrant dismissal.” Pagtalunan, 291 F.3d at 642 (citing Yourish, 191 F.3d at 4 991). However, “delay inherently increases the risk that witnesses’ memories will fade and evidence will become stale.” Id. at 643. The Court found that the Complaint fails to state a claim 5 and gave Plaintiff thirty days to file an amended complaint or notify the Court that she wished to 6 stand on the Complaint. The thirty-day period has now passed, and the case is stalled due to 7 Plaintiff’s failure to file an amended complaint or to notify the Court that she wishes to stand on 8 the Complaint. Therefore, the third factor weighs in favor of dismissal. 9 As for the availability of lesser sanctions, at this stage in the proceedings there is little 10 available to the Court that would constitute a satisfactory lesser sanction while protecting the 11 Court from further unnecessary expenditure of its scarce resources. Considering Plaintiff’s in 12 forma pauperis status, it appears that monetary sanctions are of little use. And, given the stage of 13 these proceedings, the preclusion of evidence or witnesses is not available. 14 Although the Court has discretion to recommend dismissal with prejudice, given the lack 15 of information regarding the relevant state court proceedings and the applicability of the above 16 doctrines, the Court will recommend dismissal without prejudice. Accordingly, because the 17 dismissal being considered in this case is without prejudice, the Court is stopping short of using 18 the harshest possible sanction of dismissal with prejudice. 19 Finally, because public policy favors disposition on the merits, this factor weighs against 20 dismissal. Pagtalunan, 291 F.3d at 643. 21 After weighing the factors, the Court finds that dismissal without prejudice is appropriate. 22 VI. CONCLUSION AND RECOMMENDATIONS 23 The Court screened Plaintiff’s complaint and recommends finding that it fails to state a claim under the relevant legal standards. Furthermore, Plaintiff has failed to comply with the 24 screening order, which directed Plaintiff to file an amended complaint or notify the Court that she 25 wishes to stand on the Complaint. Plaintiff has failed to timely file an amended complaint and has 26 not otherwise prosecuted this action. 27 Accordingly, the Court HEREBY RECOMMENDS that: 28 1 1. This action be DISMISSED, without prejudice, based on Plaintiff’s failure to state 2 | aclaim upon which relief may be granted, failure to comply with a Court order, and failure to 3 || prosecute; and 4 2. The Clerk of Court be directed to close this case. 5 These findings and recommendations are submitted to the district judge assigned to the 6 | Case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within twenty-one days after being 7 served with these findings and recommendations, Plaintiff may file written objections with the 8 court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and
9 Recommendations.” Plaintiff is advised that failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (quoting Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
12 | ITIS ORDERED. | pated: _November 10, 2020 [Jee ey 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28