1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 CHRISTOPHER G. VALENCIA, ) Case No.: 1:21-cv-00137-SAB (PC) ) 12 Plaintiff, ) ) ORDER DIRECTING CLERK OF COURT TO 13 v. ) RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION AND FINDINGS AND 14 KEN CLARK, et al., ) RECOMMENDATIONS RECOMMENDING ) DISMISSAL 15 Defendants. ) ) (ECF Nos. 28, 29) 16 )
17 Plaintiff Christopher G. Valencia is proceeding pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge 19 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. The action was filed on February 3, 2021. 20 On March 8, 2021, the Court screened Plaintiff’s complaint, found no claims to be cognizable, 21 and granted Plaintiff thirty days to file a first amended complaint. (ECF No. 14.) On March 25, 2021, 22 Plaintiff filed a first amended complaint. (ECF No. 15.) On May 17, 2021, the Court screened 23 Plaintiff’s first amended complaint, again found no claims to be cognizable, and granted Plaintiff 24 thirty days to file a second amended complaint. (ECF No. 17.) On October 7, 2021, Plaintiff filed a 25 second amended complaint. (ECF No. 27.) On October 14, 2021, the Court screened Plaintiff’s 26 second amended complaint, found no cognizable claims, and granted Plaintiff one final opportunity to 27 amend the complaint, but he failed to do so. (ECF No. 28.) Therefore, on November 29, 2021, the 28 Court ordered Plaintiff to show cause within fourteen days. (ECF No. 29.) Plaintiff has failed to 1 respond to the Court’s November 29, 2021 order and the time to do so has passed. Accordingly, 2 dismissal of the action is warranted. 3 I. 4 SCREENING REQUIREMENT 5 The Court is required to screen complaints brought by prisoners seeking relief against a 6 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court 7 must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous 8 or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] monetary 9 relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see also 28 10 U.S.C. § 1915A(b). 11 A complaint must contain “a short and plain statement of the claim showing that the pleader is 12 entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 13 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do 14 not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 15 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated 16 in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 17 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally 18 construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 19 Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, which 20 requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is 21 liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 22 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and 23 “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the plausibility 24 standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 25 II. 26 COMPLAINT ALLEGATIONS 27 On November 6, 2020, under Warden Clark’s supervision an inmate who was on quarantine 28 due to being infected with COVID-19 was transported to Plaintiff’s prison building and placed in his 1 cell. Prison policy prohibits the movement of inmate’s during the 14 day quarantine phase to ensure 2 the safety of other inmates and staff. Plaintiff was required to live with the infected prisoner for three 3 days. On the third day after Plaintiff’s complaints, prison custody staff went to Plaintiff’s cell and 4 removed the infected inmate and transferred him to the quarantine unit. 5 Warden Clark allowed his custody staff to move an infected inmate into Plaintiff’s cell against 6 his will which subjected Plaintiff to serious harm as he got sick from contacting COVID-19. 7 Plaintiff’s request for medical care was ignored. 8 Warden Clark is responsible for custody staff and Chief Executive Officer Celia Bell is 9 responsible for the medical personnel at Corcoran State Prison. 10 III. 11 DISCUSSION 12 A. Supervisory Liability-Exposure to COVID-19 13 Prison officials must protect inmates from, and not be deliberately indifferent to, conditions of 14 confinement that are “very likely to cause serious illness and needless suffering.” Helling v. 15 McKinney, 509 U.S. 25, 33 (1993) (impermissible for prison officials to be “deliberately indifferent to 16 the exposure of inmates to a serious, communicable disease on the ground that the complaining inmate 17 shows no serious current symptoms”). In determining whether a prison official's failure to protect 18 prisoners from harm rises to the level of an Eighth Amendment violation, the Court must consider two 19 factors. The first factor is objective: the conditions of confinement must have put prisoners at 20 “substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 834 (1970). The second is 21 subjective: the prison official must have acted with “deliberate indifference” to inmate health or 22 safety. Id. Under a deliberate indifference analysis, courts inquire whether “the [prison official] knows 23 of and disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 1051, 24 1058 (9th Cir. 2004) (citing Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1187 (9th Cir. 25 2002)). 26 Exposure to disease has been determined to present a serious harm. See, e.g., Helling, 509 U.S. 27 at 33 (explaining that the reach of the Eighth Amendment includes “exposure of inmates to a serious, 28 communicable disease”); Jeffries v. Block, 940 F. Supp. 1509, 1514 (C.D. Cal. 1996) (agreeing that 1 “tuberculosis is a serious contagious disease, which presents a serious risk to inmate health”); Jolly v. 2 Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (“[C]orrectional officials have an affirmative obligation to 3 protect inmates from infectious disease.”). 4 “[I]t is not enough to show [RJD] inmates are at risk of contracting COVID-19 or that 5 [Defendants] were aware of that risk.” See Torres v. Milusnic, 472 F. Supp. 3d 713, 728 (C.D. Cal. 6 2020). “A prison official may be held liable under the Eighth Amendment for acting with ‘deliberate 7 indifference’ to inmate health or safety only if he knows that inmates face a substantial risk of serious 8 harm and disregards that risk by failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 9 847.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10
11 CHRISTOPHER G. VALENCIA, ) Case No.: 1:21-cv-00137-SAB (PC) ) 12 Plaintiff, ) ) ORDER DIRECTING CLERK OF COURT TO 13 v. ) RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION AND FINDINGS AND 14 KEN CLARK, et al., ) RECOMMENDATIONS RECOMMENDING ) DISMISSAL 15 Defendants. ) ) (ECF Nos. 28, 29) 16 )
17 Plaintiff Christopher G. Valencia is proceeding pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge 19 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. The action was filed on February 3, 2021. 20 On March 8, 2021, the Court screened Plaintiff’s complaint, found no claims to be cognizable, 21 and granted Plaintiff thirty days to file a first amended complaint. (ECF No. 14.) On March 25, 2021, 22 Plaintiff filed a first amended complaint. (ECF No. 15.) On May 17, 2021, the Court screened 23 Plaintiff’s first amended complaint, again found no claims to be cognizable, and granted Plaintiff 24 thirty days to file a second amended complaint. (ECF No. 17.) On October 7, 2021, Plaintiff filed a 25 second amended complaint. (ECF No. 27.) On October 14, 2021, the Court screened Plaintiff’s 26 second amended complaint, found no cognizable claims, and granted Plaintiff one final opportunity to 27 amend the complaint, but he failed to do so. (ECF No. 28.) Therefore, on November 29, 2021, the 28 Court ordered Plaintiff to show cause within fourteen days. (ECF No. 29.) Plaintiff has failed to 1 respond to the Court’s November 29, 2021 order and the time to do so has passed. Accordingly, 2 dismissal of the action is warranted. 3 I. 4 SCREENING REQUIREMENT 5 The Court is required to screen complaints brought by prisoners seeking relief against a 6 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court 7 must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally “frivolous 8 or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] monetary 9 relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B); see also 28 10 U.S.C. § 1915A(b). 11 A complaint must contain “a short and plain statement of the claim showing that the pleader is 12 entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 13 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do 14 not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 15 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally participated 16 in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 17 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally 18 construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th 19 Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, which 20 requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is 21 liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 22 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, and 23 “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the plausibility 24 standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 25 II. 26 COMPLAINT ALLEGATIONS 27 On November 6, 2020, under Warden Clark’s supervision an inmate who was on quarantine 28 due to being infected with COVID-19 was transported to Plaintiff’s prison building and placed in his 1 cell. Prison policy prohibits the movement of inmate’s during the 14 day quarantine phase to ensure 2 the safety of other inmates and staff. Plaintiff was required to live with the infected prisoner for three 3 days. On the third day after Plaintiff’s complaints, prison custody staff went to Plaintiff’s cell and 4 removed the infected inmate and transferred him to the quarantine unit. 5 Warden Clark allowed his custody staff to move an infected inmate into Plaintiff’s cell against 6 his will which subjected Plaintiff to serious harm as he got sick from contacting COVID-19. 7 Plaintiff’s request for medical care was ignored. 8 Warden Clark is responsible for custody staff and Chief Executive Officer Celia Bell is 9 responsible for the medical personnel at Corcoran State Prison. 10 III. 11 DISCUSSION 12 A. Supervisory Liability-Exposure to COVID-19 13 Prison officials must protect inmates from, and not be deliberately indifferent to, conditions of 14 confinement that are “very likely to cause serious illness and needless suffering.” Helling v. 15 McKinney, 509 U.S. 25, 33 (1993) (impermissible for prison officials to be “deliberately indifferent to 16 the exposure of inmates to a serious, communicable disease on the ground that the complaining inmate 17 shows no serious current symptoms”). In determining whether a prison official's failure to protect 18 prisoners from harm rises to the level of an Eighth Amendment violation, the Court must consider two 19 factors. The first factor is objective: the conditions of confinement must have put prisoners at 20 “substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 834 (1970). The second is 21 subjective: the prison official must have acted with “deliberate indifference” to inmate health or 22 safety. Id. Under a deliberate indifference analysis, courts inquire whether “the [prison official] knows 23 of and disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 1051, 24 1058 (9th Cir. 2004) (citing Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 1187 (9th Cir. 25 2002)). 26 Exposure to disease has been determined to present a serious harm. See, e.g., Helling, 509 U.S. 27 at 33 (explaining that the reach of the Eighth Amendment includes “exposure of inmates to a serious, 28 communicable disease”); Jeffries v. Block, 940 F. Supp. 1509, 1514 (C.D. Cal. 1996) (agreeing that 1 “tuberculosis is a serious contagious disease, which presents a serious risk to inmate health”); Jolly v. 2 Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (“[C]orrectional officials have an affirmative obligation to 3 protect inmates from infectious disease.”). 4 “[I]t is not enough to show [RJD] inmates are at risk of contracting COVID-19 or that 5 [Defendants] were aware of that risk.” See Torres v. Milusnic, 472 F. Supp. 3d 713, 728 (C.D. Cal. 6 2020). “A prison official may be held liable under the Eighth Amendment for acting with ‘deliberate 7 indifference’ to inmate health or safety only if he knows that inmates face a substantial risk of serious 8 harm and disregards that risk by failing to take reasonable measures to abate it.” Farmer, 511 U.S. at 9 847. Under this standard, “prison officials who actually kn[o]w of a substantial risk to inmate health 10 or safety may be found free from liability if they respond[ ] reasonably to the risk, even if the harm 11 ultimately [i]s not averted.” Id. at 844. To allege deliberate indifference, therefore, Plaintiff must 12 include “factual content” from which the court might reasonably infer that each Defendant he seeks to 13 sue had a subjective “state of mind more blameworthy than negligence,” and more akin to criminal 14 recklessness. Id. at 835, 839–40. 15 Insofar as Plaintiff is attempting to sue Defendants Clark and Bell based solely upon their 16 supervisory roles, he may not do so. Liability may not be imposed on supervisory personnel for the 17 actions or omissions of their subordinates under the theory of respondeat superior. Iqbal, 556 U.S. at 18 676–77; Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1020–21 (9th Cir. 2010); Ewing v. City of 19 Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). 20 Supervisors may be held liable only if they “participated in or directed the violations, or knew 21 of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 22 1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011); Corales v. Bennett, 567 F.3d 23 554, 570 (9th Cir. 2009). “The requisite causal connection may be established when an official sets in 24 motion a ‘series of acts by others which the actor knows or reasonably should know would cause 25 others to inflict’ constitutional harms.” Corales v. Bennett, 567 F.3d at 570. Supervisory liability may 26 also exist without any personal participation if the official implemented “a policy so deficient that the 27 policy itself is a repudiation of the constitutional rights and is the moving force of the constitutional 28 1 violation.” Redman v. Cty. of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (citations and 2 quotations marks omitted), abrogated on other grounds by Farmer v. Brennan, 511 U.S. 825 (1970). 3 To prove liability for an action or policy, the plaintiff “must ... demonstrate that his deprivation 4 resulted from an official policy or custom established by a ... policymaker possessed with final 5 authority to establish that policy.” Waggy v. Spokane County Washington, 594 F.3d 707, 713 (9th Cir. 6 2010). When a defendant holds a supervisory position, the causal link between such defendant and the 7 claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 8 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory 9 allegations concerning the involvement of supervisory personnel in civil rights violations are not 10 sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). 11 Plaintiff has failed to allege direct participation in the alleged violations by Defendants Clark 12 and Bell. Although Plaintiff contends he was improperly housed with an infected inmate, he has failed 13 to allege the causal link between such Defendant and the claimed constitutional violation which must 14 be specifically alleged. He does not make a sufficient showing of any personal participation, 15 direction, or knowledge on these Defendants’ part regarding any other prison officials' actions. 16 Plaintiff has not alleged that these Defendants personally participated in the alleged deprivations. 17 B. Denial of Medical Treatment 18 A prisoner’s claim of inadequate medical care does not constitute cruel and unusual punishment 19 in violation of the Eighth Amendment unless the mistreatment rises to the level of “deliberate 20 indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting 21 Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for deliberate indifference requires 22 Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure to treat a prisoner’s 23 condition could result in further significant injury or the ‘unnecessary and wanton infliction of pain,’” 24 and (2) “the defendant’s response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096. A 25 defendant does not act in a deliberately indifferent manner unless the defendant “knows of and 26 disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). 27 “Deliberate indifference is a high legal standard,” Simmons v. Navajo County, Ariz, 609 F.3d 1011, 28 1019 (9th Cir. 2010); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is shown where there 1 was “a purposeful act or failure to respond to a prisoner’s pain or possible medical need” and the 2 indifference caused harm. Jett, 439 F.3d at 1096. 3 Negligence or medical malpractice do not rise to the level of deliberate indifference. Broughton 4 v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-106). “[A] 5 complaint that a physician has been negligent in diagnosing or treating a medical condition does not 6 state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does 7 not become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106; 8 see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995). Even gross negligence is 9 insufficient to establish deliberate indifference to serious medical needs. See Wood v. Housewright, 10 900 F.2d 1332, 1334 (9th Cir. 1990). Additionally, a prisoner’s mere disagreement with diagnosis or 11 treatment does not support a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th 12 Cir. 1989). 13 Further, a “difference of opinion between a physician and the prisoner—or between medical 14 professionals—concerning what medical care is appropriate does not amount to deliberate indifference.” 15 Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. Vild, 891 F.2d at 242, overruled 16 in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082–83 (9th Cir. 2014); Wilhelm v. Rotman, 17 680 F.3d 1113, 1122–23 (9th Cir. 2012) (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)). 18 Rather, Plaintiff “must show that the course of treatment the doctors chose was medically unacceptable 19 under the circumstances and that the defendants chose this course in conscious disregard of an excessive 20 risk to [his] health.” Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 332) (internal quotation marks 21 omitted). 22 First, Plaintiff fails to demonstrate a serious medical need. Second, Plaintiff’s conclusory 23 allegations are insufficient to give rise to a claim for deliberate indifference based on the alleged 24 denial of medical treatment. The conclusory claim that his request for medical care was ignored does 25 not demonstrate deliberate indifference. Moreover, Plaintiff fails to attribute any specific conduct to 26 these defendants, other than that they were supervisors. As explained, above, supervisor liability is 27 insufficient to state a cognizable claim against these defendants. See Willard v. Cal. Dep't of Corr. & 28 Rehab., No. 14-0760, 2014 WL 6901849, at *4 (E.D. Cal. Dec. 5, 2014) (“To premise a supervisor's 1 alleged liability on a policy promulgated by the supervisor, plaintiff must identify a specific policy and 2 establish a ‘direct causal link’ between that policy and the alleged constitutional deprivation.”). The 3 Court is not discounting Plaintiff's concerns about contracting COVID-19. His concerns are valid and 4 significant. However, nothing in his complaint suggests that Defendants Clark and Bell disregarded 5 the risk Plaintiff faced. Accordingly, Plaintiff fails to state a cognizable claim. 6 IV. 7 FAILURE TO OBEY COURT ORDER AND FAILURE TO PROSECUTE 8 Here, the Court screened Plaintiff’s second amended complaint, and on October 14, 2021, an 9 order issued providing Plaintiff with the legal standards that applied to his claims, advising him of the 10 deficiencies that needed to be corrected, and granting him leave to file an amended complaint within 11 thirty days. (ECF No. 28.) Plaintiff did not file a third amended complaint or otherwise respond to the 12 Court’s October 14, 2021 order. Therefore, on November 29, 2021, the Court ordered Plaintiff to show 13 cause within fourteen (14) days why the action should not be dismissed. (ECF No. 29.) Plaintiff failed 14 to respond to the November 29, 2021 order. 15 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules or 16 with any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 17 within the inherent power of the Court.” The Court has the inherent power to control its docket and 18 may, in the exercise of that power, impose sanctions where appropriate, including dismissal of the 19 action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000). 20 A court may dismiss an action based on a party’s failure to prosecute an action, failure to obey 21 a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 52, 53-54 (9th 22 Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 23 (9th Cir. 1992) (dismissal for failure to comply with an order to file an amended complaint); Carey v. 24 King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring 25 pro se plaintiffs to keep court apprised of address); Malone v. United States Postal Serv., 833 F.2d 128, 26 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 27 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local rules). 28 /// 1 “In determining whether to dismiss an action for lack of prosecution, the district court is required 2 to consider several factors: ‘(1) the public’s interest in expeditious resolution of litigation; (2) the court’s 3 need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 4 disposition of cases on their merits; and (5) the availability of less drastic sanctions.’ ” Carey, 856 F.2d 5 at 1440 (quoting Henderson, 779 F.2d at 1423). These factors guide a court in deciding what to do, and 6 are not conditions that must be met in order for a court to take action. In re Phenylpropanolamine (PPA) 7 Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (citation omitted). 8 In this instance, the public’s interest in expeditious resolution of the litigation and the Court’s 9 need to manage its docket weigh in favor of dismissal. In re Phenylpropanolamine (PPA) Products 10 Liability Litigation, 460 F.3d at 1226. Plaintiff was ordered to file an amended complaint within thirty 11 days of October 14, 2021 and has not done so. Accordingly, the operative pleading is the October 7, 12 2021 second amended complaint which has been found not to state a cognizable claim. Plaintiff’s failure 13 to comply with the order of the Court by filing an amended complaint hinders the Court’s ability to 14 move this action towards disposition. This action can proceed no further without Plaintiff’s compliance 15 with the order and his failure to comply indicates that Plaintiff does not intend to diligently litigate this 16 action. 17 Since it appears that Plaintiff does not intend to litigate this action diligently there arises a 18 rebuttable presumption of prejudice to the defendants in this action. In re Eisen, 31 F.3d 1447, 1452-53 19 (9th Cir. 1994). The risk of prejudice to the defendants also weighs in favor of dismissal. 20 The public policy in favor of deciding cases on their merits is greatly outweighed by the factors 21 in favor of dismissal. It is Plaintiff’s responsibility to move this action forward. In order for this action 22 to proceed, Plaintiff is required to file an amended complaint curing the deficiencies in the operative 23 pleading. Despite being ordered to do so, Plaintiff did not file an amended complaint or respond to the 24 order to show cause and this action cannot simply remain idle on the Court’s docket, unprosecuted. In 25 this instance, the fourth factor does not outweigh Plaintiff’s failure to comply with the Court’s orders. 26 Finally, a court’s warning to a party that their failure to obey the court’s order will result in 27 dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 28 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The Court’s October 14, 2021 order requiring 1 Plaintiff to file an amended complaint expressly stated: “If Plaintiff fails to file an amended complaint 2 in compliance with this order, the Court will recommend to a district judge that this action be 3 dismissed consistent with the reasons stated in this order.” (ECF No. 28.) In addition, the Court’s 4 November 29, 2021, order to show cause specifically stated: “Plaintiff’s failure to comply with this 5 order will result a recommendation to dismiss the action.” (ECF No. 29.) Thus, Plaintiff had adequate 6 warning that dismissal would result from his noncompliance with the Court’s order. 7 V. 8 ORDER AND RECOMMENDATION 9 The Court has screened Plaintiff’s complaint and found that it fails to state a cognizable claim. 10 Plaintiff has failed to comply with the Court’s order to file a second amended complaint or respond to 11 the Court’s order to show why the action should not be dismissed. In considering the factors to 12 determine if this action should be dismissed, the Court finds that this action should be dismissed for 13 Plaintiff’s failure to state a cognizable claim, failure to obey the October 15, 2021 and November 29, 14 2021 orders, and failure to prosecute this action. 15 Accordingly, IT IS ORDERED that the Clerk of Court randomly assign a District Judge to this 16 action. 17 Further, IT IS HEREBY RECOMMENDED that this action be DISMISSED for Plaintiff’s 18 failure to state a claim, failure to comply with a court order, and failure to prosecute. 19 This Findings and Recommendation is submitted to the district judge assigned to this action, 20 pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen (14) days of 21 service of this Recommendation, Plaintiff may file written objections to this findings and 22 recommendation with the Court. Such a document should be captioned “Objections to Magistrate 23 Judge’s Findings and Recommendation.” The district judge will review the magistrate judge’s Findings 24 and Recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file 25 /// 26 /// 27 /// 28 /// 1 || objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheele 2 || 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 IT IS SO ORDERED. A (Se _ > Dated: _ J anuary 3, 2022 OF 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10