1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 MARTIN FARIAS, Case No. 1:22-cv-00563-BAM (PC) 11 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO 12 v. ACTION 13 CISNEROS, et al., FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION, WITH PREJUDICE, FOR 14 Defendants. FAILURE TO STATE A CLAIM, FAILURE TO OBEY COURT ORDER, AND FAILURE 15 TO PROSECUTE 16 (ECF No. 12) 17 FOURTEEN (14) DAY DEADLINE 18 19 I. Background 20 Plaintiff Martin Farias (“Plaintiff”) is a state prisoner proceeding pro se and in forma 21 pauperis in this civil rights action under 42 U.S.C. § 1983. This matter was referred to a United 22 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 23 On June 22, 2022, the Court issued a screening order granting Plaintiff leave to file a first 24 amended complaint or a notice of voluntary dismissal within thirty (30) days. (ECF No. 12.) The 25 Court expressly warned Plaintiff that the failure to comply with the Court’s order would result in 26 a recommendation for dismissal of this action, with prejudice, for failure to obey a court order 27 and for failure to state a claim. (Id. at 11.) The deadline has expired, and Plaintiff has failed to 28 file an amended complaint or otherwise communicate with the Court. 1 II. Failure to State a Claim 2 A. Screening Requirement 3 The Court is required to screen complaints brought by prisoners seeking relief against a 4 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 5 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 6 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 7 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 8 A complaint must contain “a short and plain statement of the claim showing that the 9 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 10 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 11 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 12 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 13 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 14 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 15 To survive screening, Plaintiff’s claims must be facially plausible, which requires 16 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 17 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 18 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 19 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 20 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 21 B. Plaintiff’s Allegations 22 Plaintiff is currently housed at Folsom State Prison in Represa, California. The events in 23 the complaint are alleged to have occurred while Plaintiff was housed at the Substance Abuse 24 Treatment Facility (“SATF”) in Corcoran, California.1 Plaintiff names the following defendants: 25 (1) Theresa Cisneros, Warden, SATF; and (2) B. Edwards, CEA, SATF. Plaintiff alleges as 26 follows: 27 1 Although Plaintiff also identifies California State Prison, Solano (“CSP Solano”) as an institution where the alleged 28 violations occurred, (ECF No. 1, p. 1), Plaintiff complains only of conduct occurring at SATF. 1 State officials violated Plaintiff’s 8th Amendment and other state, federal, and CCR Title 2 15 guidelines by creating a situation that caused Plaintiff to be infected with COVID-19, 3 sometime around August or September of 2020. Plaintiff was tested multiple times for 4 COVID19, all tests came back negative. Around this time frame, SATF officials began to make 5 mass inmate moves around to different bunks, sections, buildings. Officials were aware that 6 inmates were testing positive for the virus, but they mixed the negative tested inmates with the 7 infected inmates. Plaintiff was one of the negative inmates, and they purposely placed Plaintiff 8 with infected inmates, where Plaintiff then caught COVID-19. 9 CDCR staff failed to comply with COVID prevention guidelines. At this time, staff was 10 coming onto institution grounds infected with the COVID-19 virus, thereby infecting and causing 11 outbreaks to the inmate population. This took place prior to Plaintiff contracting the virus. 12 SATF did not have a medical plan in place to protect or treat high risk critical care 13 patients, like Plaintiff. And if they did have a guideline in place for this, Plaintiff was never made 14 aware of this or offered this treatment plan. 15 SATF officials were completely negligent in their medical operations, and showed 16 deliberate indifference to Plaintiff’s health and wellbeing. 17 Plaintiff alleges that as a result, he suffered the following injuries: As a critical care 18 patient, Plaintiff’s existing health problems (headaches, breathing problems, Plaintiff’s heart with 19 pacemaker and continual irregular heart function, still suffering lingering tingling in hands, 20 fingers, and feet) – effects of all of the above, and also to this present day, Plaintiff suffers from 21 high stress, mental health issues, with severe nightmares which resulted after Plaintiff contracted 22 COVID-19. 23 As relief, Plaintiff requests further and adequate medical treatment and punitive damages. 24 C. Discussion 25 1. Linkage Requirement 26 The Civil Rights Act under which this action was filed provides:
27 Every person who, under color of [state law] . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, 28 1 privileges, or immunities secured by the Constitution . . . shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for 2 redress.
3 42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or link between 4 the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See 5 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, (1978); Rizzo v. Goode, 423 U.S. 362, (1976). The 6 Ninth Circuit has held that “[a] person ‘subjects another to the deprivation of a constitutional 7 right, within the meaning of section 1983, if he does an affirmative act, participates in another’s 8 affirmative acts or omits to perform an act which he is legally required to do that causes the 9 deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 10 Plaintiff fails to link any named defendant to any claims in his complaint. Plaintiff alleges 11 generally that “state officials,” “SATF officials,” and “CDCR staff” did or did not take certain 12 actions, but Plaintiff does not link Defendant Cisneros or Defendant Edwards to any of his 13 allegations. 14 2. Supervisor Liability 15 To the extent Plaintiff seeks to hold any defendant liable based solely upon their 16 supervisory role, he may not do so. Liability may not be imposed on supervisory personnel for 17 the actions or omissions of their subordinates under the theory of respondeat superior. Iqbal, 556 18 U.S. at 676–77; Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1020–21 (9th Cir. 2010); Ewing v. 19 City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th 20 Cir. 2002). “A supervisor may be liable only if (1) he or she is personally involved in the 21 constitutional deprivation, or (2) there is a sufficient causal connection between the supervisor’s 22 wrongful conduct and the constitutional violation.” Crowley v. Bannister, 734 F.3d 967, 977 (9th 23 Cir. 2013) (citation and quotation marks omitted); accord Lemire v. Cal. Dep’t of Corrs. & 24 Rehab., 726 F.3d 1062, 1074–75 (9th Cir. 2013); Lacey v. Maricopa Cty., 693 F.3d 896, 915–16 25 (9th Cir. 2012) (en banc). “Under the latter theory, supervisory liability exists even without overt 26 personal participation in the offensive act if supervisory officials implement a policy so deficient 27 that the policy itself is a repudiation of constitutional rights and is the moving force of a 28 1 constitutional violation.” Crowley, 734 F.3d at 977 (citing Hansen v. Black, 885 F.2d 642, 646 2 (9th Cir. 1989)) (internal quotation marks omitted). 3 3. Eighth Amendment 4 a. Medical Care 5 A prisoner’s claim of inadequate medical care constitutes cruel and unusual punishment in 6 violation of the Eighth Amendment where the mistreatment rises to the level of “deliberate 7 indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) 8 (quoting Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for deliberate 9 indifference requires Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure 10 to treat a prisoner’s condition could result in further significant injury or the ‘unnecessary and 11 wanton infliction of pain,’” and (2) “the defendant’s response to the need was deliberately 12 indifferent.” Jett, 439 F.3d at 1096. 13 A defendant does not act in a deliberately indifferent manner unless the defendant “knows 14 of and disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 15 837 (1994). “Deliberate indifference is a high legal standard,” Simmons v. Navajo Cty. Ariz., 609 16 F.3d 1011, 1019 (9th Cir. 2010); Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), and is 17 shown where there was “a purposeful act or failure to respond to a prisoner’s pain or possible 18 medical need” and the indifference caused harm. Jett, 439 F.3d at 1096. In applying this 19 standard, the Ninth Circuit has held that before it can be said that a prisoner’s civil rights have 20 been abridged, “the indifference to his medical needs must be substantial. Mere ‘indifference,’ 21 ‘negligence,’ or ‘medical malpractice’ will not support this cause of action.” Broughton v. Cutter 22 Labs., 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105–06). Even gross 23 negligence is insufficient to establish deliberate indifference to serious medical needs. See Wood 24 v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). 25 Although Plaintiff alleges that prison staff did not take measures to prevent him from 26 contracting COVID-19, he does not allege what kind of treatment, if any, he received after he 27 contracted COVID-19. Plaintiff alleges only that “SATF officials were completely negligent in 28 their medical operations, and showed deliberent [sic] indifference to my health & well-being.” 1 (ECF No. 1, p. 4.) However, Plaintiff fails to allege any factual support as to how any defendant 2 was deliberately indifferent to his medical needs once he contracted COVID-19. Furthermore, as 3 noted above, Plaintiff has failed to link any individual defendant to the events alleged. 4 b. Conditions of Confinement 5 Although Plaintiff purports to bring only a claim under the Eighth Amendment regarding 6 his medical care, Plaintiff may be attempting to bring a conditions of confinement claim 7 regarding the spread of COVID-19 due to movement of inmates and the placement of inmates 8 who tested negative for COVID-19 with inmates who were infected. The Court provides the 9 relevant pleading standards below. 10 Conditions of confinement may, consistent with the Constitution, be restrictive and harsh. 11 See Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Morgan v. Morgensen, 465 F.3d 1041, 1045 12 (9th Cir. 2006); Osolinski v. Kane, 92 F.3d 934, 937 (9th Cir. 1996); Jordan v. Gardner, 986 F.2d 13 1521, 1531 (9th Cir. 1993) (en banc). Prison officials must, however, provide prisoners with 14 “food, clothing, shelter, sanitation, medical care, and personal safety.” Toussaint v. McCarthy, 15 801 F.2d 1080, 1107 (9th Cir. 1986), abrogated in part on other grounds by Sandin v. Connor, 16 515 U.S. 472 (1995); see also Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000); Hoptowit v. 17 Ray, 682 F.2d 1237, 1246 (9th Cir. 1982); Wright v. Rushen, 642 F.2d 1129, 1132-33 (9th Cir. 18 1981). 19 Two requirements must be met to show an Eighth Amendment violation. Farmer, 511 20 U.S. at 834. “First, the deprivation must be, objectively, sufficiently serious.” Id. (internal 21 quotation marks and citation omitted). Second, “prison officials must have a sufficiently culpable 22 state of mind,” which for conditions of confinement claims, “is one of deliberate indifference.” 23 Id. (internal quotation marks and citation omitted). Prison officials act with deliberate 24 indifference when they know of and disregard an excessive risk to inmate health or safety. Id. at 25 837. The circumstances, nature, and duration of the deprivations are critical in determining 26 whether the conditions complained of are grave enough to form the basis of a viable Eighth 27 Amendment claim. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2006). Mere negligence on the 28 part of a prison official is not sufficient to establish liability, but rather, the official’s conduct 1 must have been wanton. Farmer, 511 U.S. at 835; Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 2 1998). 3 Extreme deprivations are required to make out a conditions of confinement claim, and 4 only those deprivations denying the minimal civilized measure of life’s necessities are 5 sufficiently grave to form the basis of an Eighth Amendment violation. Farmer, 511 U.S. at 834; 6 Hudson v. McMillian, 503 U.S. 1, 9 (1992). The circumstances, nature, and duration of the 7 deprivations are critical in determining whether the conditions complained of are grave enough to 8 form the basis of a viable Eighth Amendment claim. Johnson, 217 F.3d at 731. Second, the 9 prison official must “know[ ] of and disregard[ ] an excessive risk to inmate health or safety. . . .” 10 Farmer, 511 U.S. at 837. Thus, a prison official may be held liable under the Eighth Amendment 11 for denying humane conditions of confinement only if he knows that inmates face a substantial 12 risk of harm and disregards that risk by failing to take reasonable measures to abate it. Id. at 837– 13 45. 14 COVID-19 poses a substantial risk of serious harm. See Plata v. Newsom, 445 F. Supp. 15 3d 557, 559 (N.D. Cal. Apr. 17, 2020) (“[N]o one questions that [COVID-19] poses a substantial 16 risk of serious harm” to prisoners.). However, in order to state a cognizable Eighth Amendment 17 claim, Plaintiff must provide more than generalized allegations that the “medical staff” and 18 “correctional officers” have not done enough regarding overcrowding or prison movement or 19 housing assignment to control the spread. See Booth v. Newsom, No. 2:20-cv-1562 AC P, 2020 20 WL 6741730, at *3 (E.D. Cal. Nov. 17, 2020); see Blackwell v. Covello, No. 2:20-CV-1755 DB 21 P, 2021 WL 915670, at *3 (E.D. Cal. Mar. 10, 2021) (failure to state a claim against warden for 22 failure to adequately control the spread of COVID-19 in the prison); Benitez v. Sierra 23 Conservation Ctr., Warden, No. 1:21-CV-00370 BAM (PC), 2021 WL 4077960, at *5 (E.D. Cal. 24 Sept. 8, 2021), report and recommendation adopted, No. 1:21-CV-00370 NONE BAM (PC), 25 2021 WL 4593841 (E.D. Cal. Oct. 6, 2021) (Failed to state a claim on allegations that 26 overcrowding/lack of distance between inmates has exacerbated the conditions leading to 27 transmission of COVID. Plaintiff alleges that there is no way to socially distance, among other 28 conditions.); Sanford v. Eaton, No. 1:20-CV-00792 BAM (PC), 2021 WL 3021447, at *7 (E.D. 1 Cal. July 16, 2021), report and recommendation adopted in part, rejected in part, No. 1:20-CV- 2 00792 NONE BAM (PC), 2022 WL 168530 (E.D. Cal. Jan. 19, 2022 (in order to state a 3 cognizable Eighth Amendment claim against the warden, associate wardens and any other 4 defendants named, Plaintiff must provide more than generalized allegations that the warden, 5 associate wardens and other defendants have not done enough regarding overcrowding to control 6 the spread.); Fernandez v. Gamboa, No. 21-CV-01748 JLT BAM (PC), 2022 WL 658590, at *8 7 (E.D. Cal. Mar. 4, 2022) (the actions of Defendants may not have been effective or a “perfect 8 response,” but the numerous efforts undertaken demonstrate that Defendants were engaged in 9 active conduct to manage the spread of the virus.) 10 The Court notes that overcrowding, by itself, is not a constitutional violation. Doty v. 11 County of Lassen, 37 F.3d 540, 545 n.1 (9th Cir. 1994); Hoptowit v. Ray, 682 F.2d at 1248–49 12 (noting that overcrowding itself not Eighth Amendment violation but can lead to specific effects 13 that might violate Constitution), abrogated in part on other grounds by Sandin v. Conner, 515 14 U.S. 472 (1995); see Balla v. Idaho State Bd. of Corr., 869 F.2d 461, 471 (9th Cir. 1989) 15 (allegations of prison overcrowding alone are insufficient to state a claim under the Eighth 16 Amendment.); see also Rhodes v. Chapman, 452 U.S. at 348–49 (double-celling of inmates by 17 itself does not inflict unnecessary or wanton pain or constitute grossly disproportionate 18 punishment in violation of Eighth Amendment). An overcrowding claim is cognizable only if the 19 plaintiff alleges that crowding has caused an increase in violence, has reduced the provision of 20 other constitutionally required services, or has reached a level rendering the institution no longer 21 fit for human habitation. See Balla, 869 F.2d at 471; see, e.g., Akao v. Shimoda, 832 F.2d 119, 22 120 (9th Cir. 1987) (per curiam) (as amended) (reversing district court’s dismissal of claim that 23 overcrowding caused increased stress, tension, and communicable disease among inmate 24 population); Toussaint v. Yockey, 722 F.2d 1490, 1492 (9th Cir. 1984) (affirming that Eighth 25 Amendment violation may occur as result of overcrowded prison conditions causing increased 26 violence, tension, and psychiatric problems). 27 The Court recognizes that “[p]risons present unique concerns regarding the spread of this 28 virus; by their very nature, prisons are confined spaces unsuited for ‘social distancing.’” 1 Evdokimow v. Doll, No. 4:21-CV-00261, 2021 WL 767554, at *6 (M.D. Pa. Feb. 26, 2021). 2 Nevertheless, CDC guidelines specifically contemplate that individuals will be confined within 3 prisons during the duration of this pandemic. See Interim Guidance on Management of 4 Coronavirus Disease 2019 (COVID-19) in Correctional and Detention Facilities, Centers for 5 Disease Control and Prevention, https://www.cdc.gov/coronavirus/2019- 6 ncov/community/correction-detention/guidance-correctional-detention.html (last visited April 22, 7 2022). 8 The transmissibility of the COVID-19 virus in conjunction with Plaintiff's living 9 conditions, which he alleges involved the placement of inmates infected with COVID-19 with 10 inmates who tested negative for COVID-19, are sufficient to satisfy the objective prong, i.e., that 11 Plaintiff was “incarcerated under conditions posing a substantial risk of serious harm.” The 12 pertinent question in determining whether Plaintiff states a claim is whether defendants’ actions 13 demonstrated deliberate indifference to that risk of harm. The key inquiry is not whether the 14 defendants perfectly responded, complied with every CDC guideline, or whether their efforts 15 ultimately averted the risk; instead, the key inquiry is whether they “responded reasonably to the 16 risk.” See Stevens v. Carr, No. 20-C-1735, 2021 WL 39542, at *4 (E.D. Wis. Jan. 5, 2021); 17 accord Benitez, v. Sierra Conservation Center, 1:21-CV-00370 BAM (PC), 2021 WL 4077960, 18 at *5 (E.D. Cal. Sept. 8, 2021) (same); Sanford v. Eaton, No. 1:20-CV-00792 BAM (PC), 2021 19 WL 3021447, at *8 (E.D. Cal. July 16, 2021) (same); Fernandez v. Gamboa, No. 21-CV-01748 20 JLT BAM (PC), 2022 WL 658590, at *8 (E.D. Cal. Mar. 4, 2022) (same). 21 Plaintiff finds fault with how “state officials,” “SATF officials,” and “CDCR staff” 22 responded. Plaintiff does not adequately allege who and how they were deliberately indifferent to 23 the spread of the disease. Plaintiff must allege factual support to show that any purported 24 defendant disregarded a known risk or failed to take any steps to address the risk. Wilson, 961 25 F.3d at 843 (6th Cir. 2020); Sanford v. Eaton, No. 1:20-CV-00792 BAM (PC), 2021 WL 26 3021447, at *8 (E.D. Cal. July 16, 2021) (failure to state a claim where defendants were trying 27 “alternatives” to manage the situation.); Benitez, v. Sierra Conservation Center, 1:21-CV-00370 28 BAM (PC), 2021 WL 4077960, at *5 (E.D. Cal. Sept. 8, 2021) (same). 1 As stated above, Plaintiff failed to link named defendants and provide factual support of 2 what each defendant did or did not do which allegedly violated Plaintiff’s constitutional rights. 3 4. Prison Regulations 4 Plaintiff also alleges violations of various unspecified “state, federal, and CCR Title 15 5 guidelines” and “COVID prevention guidelines” by prison staff. To the extent that Plaintiff 6 attempts to bring any claims solely based on a defendant’s violation of prison rules and policies, 7 he may not do so, as alleged violations of prison rules and policies do not give rise to a cause of 8 action under § 1983. Section 1983 provides a cause of action for the deprivation of federally 9 protected rights. “To the extent that the violation of a state law amounts to the deprivation of a 10 state-created interest that reaches beyond that guaranteed by the federal Constitution, [s]ection 11 1983 offers no redress.” Sweaney v. Ada Cty., Idaho, 119 F.3d 1385, 1391 (9th Cir. 1997) 12 (quoting Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 370 (9th Cir. 1996)); see Davis v. 13 Kissinger, No. CIV S–04–0878-GEB-DAD-P, 2009 WL 256574, *12 n. 4 (E.D. Cal. Feb. 3, 14 2009). Nor is there any liability under § 1983 for violating prison policy. Cousins v. Lockyer, 15 568 F.3d 1063, 1070 (9th Cir. 2009) (quoting Gardner v. Howard, 109 F.3d 427, 430 (8th Cir. 16 1997)). Thus, the violation of any prison regulation, rule or policy does not amount to a 17 cognizable claim under federal law, nor does it amount to any independent cause of action under 18 section 1983. 19 III. Failure to Prosecute and Failure to Obey a Court Order 20 A. Legal Standard 21 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 22 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 23 within the inherent power of the Court.” District courts have the inherent power to control their 24 dockets and “[i]n the exercise of that power they may impose sanctions including, where 25 appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 26 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 27 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 28 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 1 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 2 amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) 3 (dismissal for failure to comply with court order). 4 In determining whether to dismiss an action, the Court must consider several factors: 5 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 6 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 7 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 8 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 9 B. Discussion 10 Here, Plaintiff’s first amended complaint is overdue, and he has failed to comply with the 11 Court’s order. The Court cannot effectively manage its docket if Plaintiff ceases litigating his 12 case. Thus, the Court finds that both the first and second factors weigh in favor of dismissal. 13 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a 14 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 15 Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against 16 dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 17 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose 18 responsibility it is to move a case toward disposition on the merits but whose conduct impedes 19 progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Products 20 Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted). 21 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 22 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 23 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s June 22, 2022 screening order 24 expressly warned Plaintiff that his failure to file an amended complaint would result in a 25 recommendation of dismissal of this action, with prejudice, for failure to obey a court order and 26 for failure to state a claim. (ECF No. 12, p. 11.) Thus, Plaintiff had adequate warning that 27 dismissal could result from his noncompliance. 28 /// 1 Additionally, at this stage in the proceedings there is little available to the Court that 2 would constitute a satisfactory lesser sanction while protecting the Court from further 3 unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this 4 action, making monetary sanctions of little use, and the preclusion of evidence or witnesses is 5 likely to have no effect given that Plaintiff has ceased litigating his case. 6 IV. Conclusion and Recommendation 7 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a 8 district judge to this action. 9 Further, the Court finds that dismissal is the appropriate sanction and HEREBY 10 RECOMMENDS that this action be dismissed, with prejudice, for failure to state a claim 11 pursuant to 28 U.S.C. § 1915A, for failure to obey a Court order, and for Plaintiff’s failure to 12 prosecute this action. 13 These Findings and Recommendation will be submitted to the United States District Judge 14 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 15 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 16 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 17 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 18 specified time may result in the waiver of the “right to challenge the magistrate’s factual 19 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 20 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 21 IT IS SO ORDERED. 22
23 Dated: August 8, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 24
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