(PC) Figueroa v. Clark.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RUBEN FIGUEROA, Case No. 1:22-cv-00916-ADA-BAM (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION, WITH PREJUDICE, FOR 13 v. FAILURE TO STATE A CLAIM, FAILURE TO OBEY COURT ORDER, AND FAILURE 14 CLARK, et al., TO PROSECUTE 15 Defendants. (ECF No. 12) 16 FOURTEEN (14) DAY DEADLINE 17 18 I. Background 19 Plaintiff Ruben Figueroa (“Plaintiff”) is a former state prisoner proceeding pro se and in 20 forma pauperis in this civil rights action under 42 U.S.C. § 1983. 21 On August 25, 2022, the Court issued a screening order granting Plaintiff leave to file a 22 first amended complaint or a notice of voluntary dismissal within thirty (30) days. (ECF No. 5.) 23 Following two extensions of time, and Plaintiff’s failure to file a first amended complaint or a 24 notice of voluntary dismissal, the Court issued findings and recommendations that this action be 25 dismissed, with prejudice, for failure to state a claim, failure to obey court orders, and failure to 26 prosecute. (ECF No. 10.) 27 On January 13, 2023, Plaintiff filed a Notice of Change of Address and Motion for 28 Enlargement of Time – 30 Days. (ECF No. 11.) In light of Plaintiff’s move from a transition 1 home to a new permanent address, the Court found it appropriate to vacate the pending findings 2 and recommendations and grant Plaintiff a further thirty-day extension of time to file his first 3 amended complaint. (ECF No. 12.) Plaintiff was expressly warned that the failure to file a first 4 amended complaint in compliance with the Court’s order would result in dismissal of this action, 5 with prejudice, for failure to obey a court order and for failure to state a claim. (Id. at 3.) The 6 deadline has expired, and Plaintiff has failed to file an amended complaint or otherwise 7 communicate with the Court. 8 II. Failure to State a Claim 9 A. Screening Requirement 10 The Court is required to screen complaints brought by prisoners seeking relief against a 11 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 12 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 13 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 14 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 15 A complaint must contain “a short and plain statement of the claim showing that the 16 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 17 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 18 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 19 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 20 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 21 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 22 To survive screening, Plaintiff’s claims must be facially plausible, which requires 23 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 24 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 25 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 26 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 27 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 28 /// 1 B. Plaintiff’s Allegations 2 Plaintiff is currently out of custody. The events in the complaint are alleged to have 3 occurred while Plaintiff was housed at California State Prison in Corcoran, California 4 (“Corcoran”). Plaintiff names the following defendants: (1) Ken Clark, Warden; (2) Paul Silva, 5 Head Supervisor of Corcoran Prison Industry Authority for Diary Milk Processing Plant (“PIA- 6 Dairy”); (3) John Doe, “main boss” at PIA-Dairy; (4) “Pedro” John Doe, assistant main boss at 7 the PTA-Dairy; (5) John Doe, white male, new assistant head boss; (6) John Doe, Facility 3C 8 doctor for Corcoran; (7) Prison Industry Authority Dairy Milk Plant, unknown entity; (8) Susan 9 Doherty, Facility 3C registered nurse; (9) Linda Ortega, Facility 3C registered nurse; and 10 (10) Adrian Jaques, Facility 3C LVN nurse. The individuals are sued in their individual 11 capacities, and the Prison Industry Authority Dairy Milk Plant is sued in its individual and official 12 capacities. 13 Plaintiff alleges hazardous and unsafe working prison conditions and denial of medical 14 care in violation of the Eighth Amendment and the Fourteenth Amendment.1 Plaintiff alleges as 15 follows: 16 From June 2019 forward, Plaintiff got a job working at the PTA-Dairy milk processing 17 plant at Corcoran. After working for a few months, from February 2020 through July 2022 [sic], 18 Plaintiff gave notice to supervisors Joe2 and Pedro that the air pump machine was broken and did 19 not have a gasket on the lid. The air pump machine is used to spray disinfectant all over the work 20 area, walls, floors, celling, milk tanks, etc. When in operation, hazardous chemical would splash 21 and spray hazardous chemicals in a 25–30 foot radius. Supervisors Joe and Pedro both instructed 22 workers to continue to use the broken machine until replaced. This was deliberate indifference to 23 workers health and safety. On July 22, 2020, supervisors ordered Plaintiff to continue to use the 24 malfunctioning air pump machine. Plaintiff was spraying the chemical foam (disinfectant) on 25

1 Plaintiff is a convicted state inmate housed in a state prison facility. Therefore, the appropriate legal standard for 26 Plaintiff’s claims is the Eighth Amendment. The Supreme Court has emphasized that the Eighth Amendment’s cruel and unusual punishments clause is the appropriate mechanism for raising claims that challenge inhumane or unsafe 27 conditions of confinement. See Farmer v. Brennan, 511 U.S. 825, 832 (1994).

28 2 It is unclear who “Joe” is because Plaintiff has not named a “Joe” defendant. 1 each pallet he was working on. The air machine lid was splashing, spewing hazardous chemicals 2 all over and around Plaintiff. Plaintiff did not realize at the time, but hazardous chemical had 3 gotten on his chin/face area, causing chemical burns to appear. When Plaintiff realized the 4 chemical burns were not rashes, he notified his supervisor Joe of the burns and Joe said he would 5 document the incident on necessary forms. 6 On September 2, 2020, while working at PIA dairy processing plant, Plaintiff told the new 7 supervisor, John Doe that Plaintiff needed long protective gloves and protective gear to protect 8 from further chemical burns. These gloves are seldom available, and Plaintiff used his own 9 gloves for long periods of time. At times, the only gloves available were for both left-handed or 10 both right-handed “thereby subjecting Plaintiff and coworkers to health and safety concerns and 11 cruel and unusual work conditions.” 12 On February 24, 2021, Plaintiff was working at the PIA-Dairy processing plant. As he 13 was dumping trash into a commercial metal dumpster, Plaintiff had his left hand on top of the 14 metal bin where the hinge was located. Plaintiff leaned down to grab the trash and the trash hit 15 the lid making the lid fall, smashing, squeezing Plaintiff left-hand index finger and either 16 breaking or spraining the finger. The nail came off and it is disfigured and looks horrible. At the 17 same time as the lid smashed Plaintiff’s fingers, a wooden pallet which was on top of the trash 18 can and leaning against the container fell on Plaintiff’s left shoulder/arm creating a small purple 19 bruise. The impact caused serious arm/shoulder pain which still hurts. Plaintiff has not been 20 taken seriously for his injuries. 21 On February 10, 19, and 26, 2021, the air machine which disinfects pallets was still 22 leaking and spraying foam everywhere. It sprayed Plaintiff on both forearms and neck, burning 23 his skin, although these burns were not as severe as the ones to his chin. By this time, several 24 other workers had complained about the hazardous working condition of the still broken air 25 machine. It was used daily and would blow out hazardous chemicals. 26 /// 27 /// 28 /// 1 From March 2, 2021, through the last day of Plaintiff’s work on July 21, 2021,3 Plaintiff 2 was instructed to continue to clean and disinfect the pallets using the same broken air machine. 3 The machine was missing a rubber gasket around the seal. Plaintiff and others continued to 4 inform PIA-Dairy supervisors of the broke air machine. Supervisors instructed to continue with 5 their work and did not ensure safety goggles and other protective gear were worn. Instead, 6 Plaintiff and his coworkers were replaced by workers from another yard/facility. 7 The “entity” was responsible for ensuring the health and safety and well-being of Plaintiff 8 and the employees, yet there were no safety meetings or training on working with hazardous 9 chemicals at the PIA-Dairy milk processing plant. 10 At no time during the time Plaintiff worked for PIA-Dairy milk processing did Defendants 11 Paul Silva, Paul’s son-in-law, Joe (last name unknown),4 Pedro (last name unknown) and John 12 Doe (supervisors) ever intervene to prevent workers from using the broken air foam disinfecting 13 machine. Instead these supervisors ordered inmate workers to continue to use the broken air 14 foam disinfecting machine, despite missing the rubber seal/gasket and splashing hazardous 15 chemicals in a 20–30 foot radius. 16 Defendants Ken Clark, Paul Silva, Paul’s son-in-law, Joe (last name unknown), Pedro 17 (last name unknown) and John Doe (supervisors) each failed for months to remove the broken air 18 foam disinfecting machine, and having full knowledge the machine was broken prior to Plaintiff 19 starting to work at PIA-Dairy. They continued to order workers to use the broken machinery. 20 Each defendant, Defendants Paul Silva, Paul’s son-in-law, Joe (last name unknown), Pedro (last 21 name unknown), and John Doe (supervisors), failed to fill out appropriate work accidents forms 22 on each of the accident days, violating Due Process and not allowing for works compensation. 23 Plaintiff also alleges denial of medical care. Following the incident on July 21, 2020, 24 Plaintiff requested to be seen for the chemical burns on his face/chin. Defendant Susan Doherty 25 did not take the visit seriously because PIA-Diary did not attempt to assist Plaintiff in receiving

26 3 The Court notes that the ending dates of Plaintiff’s employment are referred to in the allegations as both in 2021 and 2022. 27

4 It is unclear who the individuals “Paul’s son-in-law” or “Joe (last name unknown),” are because these persons are 28 not named as defendants. 1 adequate medical care. On July 27, 2020, Defendant Susan Doherty did not know what the rash 2 was caused from, and Plaintiff explained that shaving around it irritated the area. Defendant’s 3 only medical treatment was to tell Plaintiff not to shave in that area for a few days and issued 4 antibiotic cream since the burn was dark purple with pus on the outer skin. No other treatment 5 was provided. 6 Plaintiff submitted several medical 7362s about chemical burns occurring at work. 7 Plaintiff’s skin was not healing with the antibiotics nurse Susan Doherty issued. On September 2, 8 2020, Defendant Susan Doherty stated that the burns appeared to be healing. Plaintiff requested 9 to see a doctor, or dermatologist and skin specialist. Yet, Defendant said that would not occur 10 because it was not an emergency. 11 After the February 24, 2021 accident and injuries on his index finger and nail and left 12 shoulder, Plaintiff submitted several 7362 medical forms explaining what happened. He stated 13 that his fingers are dislocated or broke and wanted an x-ray. Plaintiff at no time ever received an 14 x-ray. Plaintiff was seen on March 1, 2021 by Defendant Linda Ortega regarding cleaning up 15 wounds so that they would not get infected and asked if Plaintiff had a tetanus shot. Plaintiff 16 requested x-rays for his fingers, but nothing was done by Defendant like referring him to a doctor 17 or for x-rays. 18 On July 8, 2021, Plaintiff submitted medical slips 7362s indicating that his left index 19 finger was crooked, and his left arm was weaker due to the pallet hitting his left shoulder. 20 Nothing was done. On July 19, 2021, Plaintiff was scheduled for physical therapy but was left in 21 constant pain ever since accident occurred. On February 24, 2021, after Plaintiff had the work 22 accident, he was sent to the medical office for his injuries. He was bleeding profusely, and 23 Plaintiff’s left index fingernail was popping up and detached. Defendant Linda Ortega only 24 washed off the blood on hands and fingers. Nothing more was done. Plaintiff said that his 25 fingers were either broken, sprained, or dislocated and requested X-rays. Defendant Ortega failed 26 to refer Plaintiff to a doctor or obtain an x-ray. 27 When Plaintiff saw medical, he told each medical defendant of his medical condition such 28 as extreme pain, lack of shoulder arm movement, not receiving x-rays. Neither Defendant Linda 1 Ortega, Susan Doherty nor supervisor Doctor John Doe ever responded reasonably to Plaintiff’s 2 need for medical care. They did not refer Plaintiff to see a medical doctor or for x-rays. 3 Defendant Linda Ortega, Susan Doherty, supervisor Doctor John Doe, and Adrian Jaques failed 4 to provide x-rays, follow up treatment, and initial emergency care after each accident physical 5 treatment. 6 The CDCR health care system and Policy under Title 15 is inadequate and ineffective. At 7 no time after the accident did Defendants x-ray Plaintiff’s finger or left shoulder/arm to verify the 8 injuries. From February 24, 2021 to February 17, 2022, Plaintiff was in pain from his left 9 shoulder. Plaintiff got treated solely because he was transferred to another institution. 10 Plaintiff saw Defendant Adrian Jaques who “ignored” Plaintiff and prescribed ibuprofen 11 for alleviation of pain and use of capsaicin cream for chemical burns. 12 PIA-Dairy supervisors act with deliberate indifference or reckless disregard to safety by 13 “failing to act” reasonably in response to danger. PIA Dairy supervisors Paul Silva, Joe 14 (unknown last name), Pedro (unknown last name) and John Doe had plenty of time and an 15 opportunity to get a seal gasket for the broken air foam machine, yet failed to take appropriate 16 measures to abate the risk of harm. 17 Plaintiff alleges an Eighth Amendment violation by Ken Clark, Paul Silva, Joe (last name 18 unknown), Pedro (last name unknown), John Doe (white supervisor) by continuously subjecting 19 Plaintiff to unsafe, unhealthy, dangerous work conditions by making Plaintiff continue to use a 20 broken air foam machine missing its rubber plastics gasket. They knew it was broken for 17 21 months. 22 Plaintiff alleges an Eighth Amendment violation by Doctor John Doe, Susan Doherty, 23 Linda Ortega and Adrian Jaques by depriving Plaintiff of a right to adequate medical healthcare. 24 Plaintiff alleges that the entity of the PIA-Dairy milk processing plant at Corcoran failed 25 to adequately supervise all PIA-Diary supervisors named as defendants. The PIA-Dairy entity 26 trains, hires, oversees, gives orders and allowed broken machinery which repeatedly hurt Plaintiff 27 and continued to be used, even though supervisors knew the machinery was broken. The 28 entity/owners failed to properly train to use the hazardous chemicals and broken foam air 1 machine. The February 24, 2021 accident should not have occurred because the trash bin should 2 have been completely open and not had a big metal storage bin and the pallet which fell should 3 not have been left leaning on the storage bin. 4 Plaintiff alleges his equal protection rights under the Fourteenth Amendment were 5 violated by having Plaintiff work in an unsafe, unhealthy and dangerous work conditions. 6 Plaintiff also alleges that his Fourteenth Amendment rights were violated by the medical care he 7 was provided. 8 As remedies, Plaintiff seeks declaratory relief and compensatory and punitive damages. 9 C. Discussion 10 Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8 and fails to 11 state a cognizable claim under 42 U.S.C. § 1983. 12 1. Federal Rule of Civil Procedure 8 13 Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and plain 14 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). 15 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause 16 of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 17 (citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a 18 claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. 19 at 570). While factual allegations are accepted as true, legal conclusions are not. Id.; see also 20 Twombly, 550 U.S. at 556–57; Moss, 572 F.3d at 969. 21 Here, Plaintiff’s complaint is not short. It is not a plain statement of his claims showing 22 that he is entitled to relief. Plaintiff’s allegations are conclusory and do not state what happened, 23 when it happened, or which defendant was involved. General assertions regarding who knew of 24 Plaintiff’s working conditions are not sufficient, and Plaintiff may not merely state the elements 25 of a cause of action without providing any factual allegations in support of his claims. Plaintiff 26 should state his key factual allegations as to each defendant. For instance, Plaintiff must allege 27 who he told what and when regarding the air foam machine and what care he was provided for his 28 injuries. His allegations that “nothing was done” for medical care are insufficient because he also 1 alleges that some kind of care was provided. 2 2. Supervisory Liability 3 To the extent Plaintiff seeks to hold any defendant liable based solely upon their 4 supervisory role, he may not do so. Liability may not be imposed on supervisory personnel for 5 the actions or omissions of their subordinates under the theory of respondeat superior. Iqbal, 556 6 U.S. at 676–77; Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1020–21 (9th Cir. 2010); Ewing v. 7 City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 297 F.3d 930, 934 (9th 8 Cir. 2002). “A supervisor may be liable only if (1) he or she is personally involved in the 9 constitutional deprivation, or (2) there is a sufficient causal connection between the supervisor’s 10 wrongful conduct and the constitutional violation.” Crowley v. Bannister, 734 F.3d 967, 977 (9th 11 Cir. 2013) (citation and quotation marks omitted); accord Lemire v. Cal. Dep’t of Corrs. & 12 Rehab., 726 F.3d 1062, 1074–75 (9th Cir. 2013); Lacey v. Maricopa Cty., 693 F.3d 896, 915–16 13 (9th Cir. 2012) (en banc). “Under the latter theory, supervisory liability exists even without overt 14 personal participation in the offensive act if supervisory officials implement a policy so deficient 15 that the policy itself is a repudiation of constitutional rights and is the moving force of a 16 constitutional violation.” Crowley, 734 F.3d at 977 (citing Hansen v. Black, 885 F.2d 642, 646 17 (9th Cir. 1989)) (internal quotation marks omitted). 18 Plaintiff seeks to hold Ken Clark, Paul Silva, Paul’s son in law, Joe (last name unknown), 19 Pedro (last name unknown), and John Doe (supervisors), responsible for Plaintiff’s injuries from 20 the foam air machine. Plaintiff alleges that each defendant “knew” that the foam air machine was 21 broken, Plaintiff has failed to allege direct participation of these defendants in the alleged 22 violations. Plaintiff is attempting to allege that Ken Clark, Paul Silva, Paul’s son-in-law, Joe (last 23 name unknown), Pedro (last name unknown), and John Doe (supervisors) participated in or 24 directed the violations, or knew of the violations and failed to act to prevent them. Plaintiff 25 alleges that the warden “knew” or “should have known” or “absolutely knew” about conditions. 26 Plaintiff merely relies on these supervising Defendants’ responsibilities to ensure the safety and 27 health of the prisoners, but this claim is based on respondeat superior which is not cognizable 28 under section 1983. Iqbal, 556 U.S. at 677. Such conclusory allegations are insufficient to state 1 the causal link between such defendant and the claimed constitutional violation. 2 To prove liability for an action or policy, the plaintiff “must . . . demonstrate that his 3 deprivation resulted from an official policy or custom established by a . . . policymaker possessed 4 with final authority to establish that policy.” Waggy v. Spokane Cty. Wash., 594 F.3d 707, 713 5 (9th Cir. 2010). When a defendant holds a supervisory position, the causal link between such 6 defendant and the claimed constitutional violation must be specifically alleged. See Fayle v. 7 Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 8 1978). Vague and conclusory allegations concerning the involvement of supervisory personnel in 9 civil rights violations are not sufficient. See Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 10 1982). In addition, it is unclear what the policy is that is purportedly at issue. Plaintiff’s 11 conclusory statements are insufficient to state a cognizable claim against the supervisory 12 defendants. Plaintiff has failed to “demonstrate that his deprivation resulted from an official 13 policy or custom established by a . . . policymaker possessed with final authority to establish that 14 policy.” 15 Plaintiff mentions that supervisors should have trained differently or better. A “failure to 16 train” theory can be the basis for a supervisor’s liability under § 1983 in only limited 17 circumstances, such as where the failure amounts to deliberate indifference. See City of Canton v. 18 Harris, 489 U.S. 378, 387–90 (1989). To establish a failure to train claim, a plaintiff must show 19 that “ ‘in light of the duties assigned to specific officers or employees, the need for more or 20 different training [was] obvious, and the inadequacy so likely to result in violations of 21 constitutional rights, that the policy-makers . . . can reasonably be said to have been deliberately 22 indifferent to the need.’ “ Clement v. Gomez, 298 F.3d 898, 905 (9th Cir. 2002) (quoting Canton, 23 489 U.S. at 390). Plaintiff has not alleged facts demonstrating that any defendant was 24 deliberately indifferent to a need for more or different training. 25 /// 26 /// 27 /// 28 /// 1 3. Linkage Requirement 2 The Civil Rights Act under which this action was filed provides:

3 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, 4 privileges, or immunities secured by the Constitution . . . shall be liable to the 5 party injured in an action at law, suit in equity, or other proper proceeding for redress. 6 7 42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or link between 8 the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See 9 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The 10 Ninth Circuit has held that “[a] person ‘subjects another to the deprivation of a constitutional 11 right, within the meaning of section 1983, if he does an affirmative act, participates in another’s 12 affirmative acts or omits to perform an act which he is legally required to do that causes the 13 deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 14 Plaintiff must link each named defendant. Plaintiff names the defendants but then uses 15 different terminology to refer to these purported defendants. In addition, Plaintiff must allege 16 factual support for each defendant. Defendants are entitled to know the conduct they are alleged 17 to have engaged in which violated Plaintiff’s rights. Fed. R. Civ. P. 8. 18 4. Federal Rules of Civil Procedure 18 and 20 19 Plaintiff may not bring unrelated claims against unrelated parties in a single action. Fed. 20 R. Civ. P. 18(a), 20(a)(2); Owens v. Hinsley, 635 F.3d 950, 952 (7th Cir. 2011); George v. Smith, 21 507 F.3d 605, 607 (7th Cir. 2007); Mackey v. Price, 2020 WL 7319420, at *3–4 (E.D. Cal. Dec. 22 11, 2020), report and recommendation adopted, 2021 WL 843462 (E.D. Cal. Mar. 5, 2021). 23 Plaintiff may bring a claim against multiple defendants so long as (1) the claim arises out of the 24 same transaction or occurrence, or series of transactions and occurrences, and (2) there are 25 commons questions of law or fact. Fed. R. Civ. P. 20(a)(2); Coughlin v. Rogers, 130 F.3d 1348, 26 1351 (9th Cir. 1997). The “same transaction” requirement refers to similarity in the factual 27 background of a claim. Id. at 1349. Only if the defendants are properly joined under Rule 20(a) 28 will the Court review the other claims to determine if they may be joined under Rule 18(a), which 1 permits the joinder of multiple claims against the same party. 2 Plaintiff may not raise different claims against different defendants in a single action. For 3 instance, Plaintiff may not state unrelated claims of his injury from the chemical burns/medical 4 care with other claims for injury to his fingers/medical care or denial of gloves. The injuries from 5 the chemical burns and the injury to his fingers are separate incidents. Unrelated claims 6 involving multiple defendants belong in different suits. Merely because Plaintiff was working at 7 the same job does not make every injury or incident related. 8 5. Eleventh Amendment Immunity 9 Plaintiff brings suit against the “entity” of the Prison Industry Authority and the “owners” 10 of the Prison Industry Authority. 11 The Prison Industry Authority, or “PIA,” is an agency within the California Department of 12 Corrections and Rehabilitation which, among other things, operates work programs for prisoners. 13 See Cal. Penal Code §§ 2800–2801; Burleson v. California, 83 F.3d 311, 312–13 (9th Cir. 1996) 14 (describing origins of PIA); Jefferson v. Hollingsworth, No. 3:17-CV-1099-BEN-BGS, 2017 WL 15 3396516, at *3 (S.D. Cal. Aug. 4, 2017). The PIA is by statute a part of the CDC, now the 16 California Department of Corrections and Rehabilitation (“CDCR”). Burleson, 83 F.3d at 312– 17 13; Cal. Penal Code § 2800 (“Commencing July 1, 2005, there is hereby continued in existence 18 within the Department of Corrections and Rehabilitation the Prison Industry Authority.”). The 19 PIA’s status as a part of the California correctional system brings it within the ambit of “prison- 20 structured programs.” Burleson, 83 F.3d at 314. 21 Claims for damages against the state, its agencies, or its officers for actions performed in 22 their official capacities are barred under the Eleventh Amendment, unless the state waives its 23 immunity. Kentucky v. Graham, 473 U.S. 159, 169 (1985) (Eleventh Amendment bars a damages 24 action against a State in federal court); see also Will v. Michigan Dep’t of State Police, 491 U.S. 25 58, 71 (1989). Indeed, the Eleventh Amendment prohibits federal courts from hearing a Section 26 1983 lawsuit in which damages or injunctive relief is sought against a state, its agencies (such as 27 CDCR) or individual prisons, absent “a waiver by the state or a valid congressional override. . . .” 28 Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999). Suits for injunctive relief are also 1 generally barred. See Nat’l Audubon Soc’y v. Davis, 307 F.3d 835, 847 (9th Cir. 2002); 2 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (“It is clear . . . that in the 3 absence of consent a suit in which the State or one of its agencies or departments is named as the 4 defendant is proscribed by the Eleventh Amendment.”). Plaintiff cannot state a claim against the 5 State of California or its officers in their official capacities. 6 6. Eighth Amendment 7 a. Deliberate Indifference to Safety 8 Plaintiff contends that the air pump machine was a known danger to the individuals 9 working in the PIA Dairy yet the supervisors never had it fixed. Plaintiff was injured. 10 The Eighth Amendment requires that prison officials take reasonable measures to 11 guarantee the safety of prisoners. Farmer v. Brennan, 511 U.S. at 832. In particular, prison 12 officials have a duty to protect prisoners from violence at the hands of other prisoners. Id. at 833; 13 Cortez v. Skol, 776 F. 3d 1046, 1050 (9th Cir. 2015); Hearns v. Terhune, 413 F.3d 1036, 1040 14 (9th Cir. 2005); Hoptowit v. Ray, 682 F.2d 1237, 1250 (9th Cir. 1982); Gillespie v. Civiletti, 629 15 F.2d 637, 642 & n.3 (9th Cir. 1980). 16 The failure of prison officials to protect inmates from attacks by other inmates or from 17 dangerous conditions at the prison violates the Eighth Amendment when two requirements are 18 met: (1) the deprivation alleged is, objectively, sufficiently serious; and (2) the prison official is, 19 subjectively, deliberately indifferent to inmate health or safety. Farmer, 511 U.S. at 834. A 20 prison official is deliberately indifferent if he knows of and disregards an excessive risk to inmate 21 health or safety by failing to take reasonable steps to abate it. Id. at 837. 22 The facts must show that defendants’ failure to fix the danger caused plaintiff’s injury. 23 See Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person subjects another to the 24 deprivation of a constitutional right if he does an act, participates in another’s act or omits to 25 perform an act he is legally required to do that causes the alleged deprivation). Failure to 26 remediate following plaintiff’s injury does not support liability, because that cannot have caused 27 plaintiff’s injury. Also, no defendant can be liable for an unsafe condition on the basis of his or 28 her general supervisory or administrative responsibilities, as there is no respondeat superior 1 liability under § 1983. See Iqbal, 556 U.S at 676; Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2 2011). 3 The claims against some defendants appear to be based on failure to correct dangerous 4 conditions after Plaintiff’s injury on July 22, 2020. Failure to correct a dangerous condition only 5 supports an Eighth Amendment claim if it caused plaintiff’s particular injury. See generally, 6 Rizzo v. Goode, 423 U.S. 362 (1976) (§ 1983 defendant liable only for harms caused by his own 7 actions). Plaintiff did not allege that he informed his supervisors of the malfunctioning machine 8 before he was injured (or say who he told and what he said), and he did not amend his complaint 9 to clarify his allegations. 10 i. Malfunctioning Air Pump Machine 11 Plaintiff alleges that he told Supervisor Joe and Pedro that the air pump machine was 12 broken, without the proper gasket, which was causing Plaintiff to be sprayed by hazardous 13 chemicals. On July 22, 2020, they instructed Plaintiff to continue to use the air pump machine. 14 Plaintiff received chemical burns. Plaintiff does not allege that after he told supervisor Joe about 15 the burns that supervisor Joe required that Plaintiff continue to use the broken air pump machine. 16 Plaintiff alleges that on September 2, 2020, he told new supervisor John Doe that Plaintiff 17 needed gloves to use to protect from further chemical burns. Plaintiff complains that the gloves 18 were either right or left-handed, and not both. But Plaintiff fails to allege what happened and 19 whether he was injured. 20 Plaintiff alleges that he was sprayed with the air foam machine on February 10, 19, and 21 26, 2021, and other dates in March–July, and was injured. But he fails to allege that any prison 22 official is deliberately indifferent because he knows of and disregards an excessive risk to inmate 23 health or safety by failing to take reasonable steps to abate it. He does not allege who instructed 24 him to use the machine on those dates and how that person knew it placed Plaintiff at risk of 25 safety. Conclusory allegations that a supervisor “has full knowledge” of the potential harm are 26 insufficient. 27 /// 28 /// 1 ii. February 24, 2021 Trash Bin/Pallet Falling Incident 2 Plaintiff complains that on February 24, 2021, when he was putting trash in the bin, the lid 3 slammed on his fingers and a pallet that had been leaning on the lid smashed onto his shoulder. 4 Plaintiff fails to state a cognizable claim for this incident. There are no facts that the 5 condition was deliberately set to harm Plaintiff or that any defendant knew of the condition of the 6 trash bin. Plaintiff injured himself when he was putting trash in the trash bin, when the lid 7 accidently fell on his fingers. There are no facts that any defendant was responsible for the lid 8 falling on Plaintiff’s fingers or responsible for the pallet being on the bin. At most, there may be 9 the possibility of negligence for the accidental injury to Plaintiff. Neither accident nor negligence 10 constitutes cruel and unusual punishment, as “[i]t is obduracy and wantonness, not inadvertence 11 or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual 12 Punishments Clause.” Whitley v. Albers, 475 U.S. 312, 319 (1986) 13 b. Deliberate Indifference to Medical Care 14 Plaintiff alleges a claim for deliberate indifference to a serious medical need. 15 To allege a claim of deliberate indifference, plaintiff must show he had a serious medical 16 need and defendants were deliberately indifferent to that need. A medical need is serious “if the 17 failure to treat the prisoner’s condition could result in further significant injury or the 18 ‘unnecessary and wanton infliction of pain.’ “ McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 19 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) 20 (en banc). Indications of a serious medical need include “the presence of a medical condition that 21 significantly affects an individual’s daily activities.” Id. at 1059–60. By establishing the 22 existence of a serious medical need, a prisoner satisfies the objective requirement for proving an 23 Eighth Amendment violation. Farmer v. Brennan, 511 U.S. 825, 834 (1994). 24 Deliberate indifference is established only where the defendant subjectively “knows of 25 and disregards an excessive risk to inmate health and safety.” Toguchi v. Chung, 391 F.3d 1051, 26 1057 (9th Cir. 2004) (emphasis added) (citation and internal quotation marks omitted). 27 Deliberate indifference can be established “by showing (a) a purposeful act or failure to respond 28 to a prisoner’s pain or possible medical need and (b) harm caused by the indifference.” Jett v. 1 Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citation omitted). Civil recklessness (failure “to act 2 in the face of an unjustifiably high risk of harm that is either known or so obvious that it should 3 be known”) is insufficient to establish an Eighth Amendment violation. Farmer v. Brennan, 511 4 U.S. 825, 836–37 & n.5 (1994) (citations omitted). 5 A difference of opinion between an inmate and prison medical personnel—or between 6 medical professionals—regarding appropriate medical diagnosis and treatment is not enough to 7 establish a deliberate indifference claim. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); 8 Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004). Additionally, “a complaint that a 9 physician has been negligent in diagnosing or treating a medical condition does not state a valid 10 claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not 11 become a constitutional violation merely because the victim is a prisoner. “ Estelle, 429 U.S. at 12 106. To establish a difference of opinion rising to the level of deliberate indifference, a “plaintiff 13 must show that the course of treatment the doctors chose was medically unacceptable under the 14 circumstances.” Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). 15 In applying this standard, the Ninth Circuit has held that before it can be said that a 16 prisoner’s civil rights have been abridged, “the indifference to his medical needs must be 17 substantial. Mere ‘indifference,’ ‘negligence,’ or ‘medical malpractice’ will not support this 18 cause of action.” Broughton v. Cutter Labs., 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle v. 19 Gamble, 429 U.S. 97, 105–06 (1976)). Even gross negligence is insufficient to establish 20 deliberate indifference to serious medical needs. See Wood v. Housewright, 900 F.2d 1332, 1334 21 (9th Cir. 1990). 22 Plaintiff fails to state a cognizable claim. Plaintiff alleges that Defendant Susan Doherty 23 did not know what caused his rash on July 27, 2020, and she only gave him antibiotic cream. 24 Plaintiff later discovered the chemical burns. Plaintiff’s allegations fail to show Defendant 25 Doherty’s indifference. Plaintiff alleges Doherty did not know what the condition was, but she 26 provided some topical antibiotic cream for the rash. 27 Plaintiff alleges that he saw Defendant Doherty on September 2 and while he wanted to 28 see a doctor, Defendant Doherty thought the burns were healing. A difference of opinion 1 between the prisoner and medical providers concerning the appropriate course of treatment does 2 not give rise to an Eighth Amendment claim. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 3 1996). 4 Plaintiff alleges that when he injured his fingers on February 24, 2021, he went to medical 5 with bloody fingers and related injuries. He saw Defendant Linda Ortega who only washed off 6 the blood. She refused to refer Plaintiff to a doctor or to get an x-ray. As currently alleged, 7 Plaintiff fails to state a cognizable claim. Plaintiff was provided care, and a difference of opinion 8 as to whether he needed a doctor or x-rays does not state a cognizable claim. This claim is also 9 improperly joined. 10 Plaintiff alleges he saw Defendant Adrian Jaques for his shoulder pain, who “ignored” 11 Plaintiff. However, Defendant Jaques gave Plaintiff pain medication and cream. Plaintiff was 12 provided care, and a difference of opinion as to whether he needed a doctor or x-rays does not 13 state a cognizable claim. This claim is also improperly joined. 14 Further, Plaintiff alleges that when Plaintiff saw “medical,” he told each medical 15 defendant of his medical condition such as extreme pain, lack of shoulder arm movement, and not 16 receiving x-rays. Plaintiff fails to state a cognizable claim based on the conclusory allegations. 17 Plaintiff must state factual support as to the identity of each defendant and what that defendant 18 did or did not do. Plaintiff must allege the extent of the care he was provided. Plaintiff is 19 reminded that a difference of opinion as to whether he needed a doctor or x-rays does not state a 20 cognizable claim. 21 7. Equal Protection 22 The Equal Protection Clause requires the State to treat all similarly situated people 23 equally. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). This does not 24 mean, however, that all prisoners must receive identical treatment and resources. See Cruz v. 25 Beto, 405 U.S. 319, 322 n.2 (1972); Ward v. Walsh, 1 F.3d 873, 880 (9th Cir. 1993); Allen v. 26 Toombs, 827 F.2d 563, 568–69 (9th Cir. 1987). 27 “To prevail on an Equal Protection claim brought under § 1983, Plaintiff must allege facts 28 plausibly showing that “ ‘the defendants acted with an intent or purpose to discriminate against 1 [them] based upon membership in a protected class,’ “ (citing Thornton v. City of St. Helens, 425 2 F.3d 1158, 1166 (9th Cir. 2005)) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 3 2001)), or that similarly situated individuals were intentionally treated differently without a 4 rational relationship to a legitimate state purpose, Engquist v. Oregon Dep’t of Agr., 553 U.S. 5 591, 601–02 (2008); Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Lazy Y Ranch 6 Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North Pacifica LLC v. City of Pacifica, 526 7 F.3d 478, 486 (9th Cir. 2008). 8 Plaintiff has not stated a cognizable equal protection claim. Plaintiff does not allege that 9 he was discriminated against because of his membership in any protected class. He also does not 10 allege factual support that he was intentionally treated differently than other similarly situated 11 inmates without a rational relationship to a legitimate state purpose. Plaintiff has not provided 12 any factual support for this claim. Fletcher v. Clendenin, No. 1:22-CV-00249-AWI-BAM (PC), 13 2022 WL 2791480, at *5 (E.D. Cal. July 15, 2022) (Equal Protection claim dismissed for failure 14 to allege factual support for denial of treatment based on membership in a protected class). 15 8. Title 15 and Policy Violation 16 To the extent that Defendant has not complied with applicable state statutes or prison 17 regulations for disclosure of information, these deprivations do not support a claim under § 1983. 18 Section 1983 only provides a cause of action for the deprivation of federally protected rights. 19 See, e.g., Nible v. Fink, 828 Fed. Appx. 463 (9th Cir. 2020) (violations of Title 15 of the 20 California Code of Regulations do not create private right of action); Nurre v. Whitehead, 580 21 F.3d 1087, 1092 (9th Cir. 2009) (section 1983 claims must be premised on violation of federal 22 constitutional right); Prock v. Warden, No. 1:13-cv-01572-MJS (PC), 2013 WL 5553349, at *11– 23 12 (E.D. Cal. Oct. 8, 2013) (noting that several district courts have found no implied private right 24 of action under title 15 and stating that “no § 1983 claim arises for [violations of title 15] even if 25 they occurred.”); Parra v. Hernandez, No. 08cv0191-H (CAB), 2009 WL 3818376, at *3 (S.D. 26 Cal. Nov. 13, 2009) (granting motion to dismiss prisoner’s claims brought pursuant to Title 15 of 27 the California Code of Regulations); Chappell v. Newbarth, No. 1:06-cv-01378-OWW-WMW 28 (PC), 2009 WL 1211372, at *9 (E.D. Cal. May 1, 2009) (holding that there is no private right of 1 action under Title 15 of the California Code of Regulations). 2 9. Declaratory Relief 3 To the extent Plaintiff’s complaint seeks a declaratory judgment, it is unnecessary. “A 4 declaratory judgment, like other forms of equitable relief, should be granted only as a matter of 5 judicial discretion, exercised in the public interest.” Eccles v. Peoples Bank of Lakewood Vill., 6 333 U.S. 426, 431 (1948). “Declaratory relief should be denied when it will neither serve a useful 7 purpose in clarifying and settling the legal relations in issue nor terminate the proceedings and 8 afford relief from the uncertainty and controversy faced by the parties.” United States v. 9 Washington, 759 F.2d 1353, 1357 (9th Cir. 1985). If this action reaches trial and the jury returns 10 a verdict in favor of Plaintiff, then that verdict will be a finding that Plaintiff’s constitutional 11 rights were violated. Accordingly, a declaration that any defendant violated Plaintiff’s rights is 12 unnecessary. 13 10. State Law Claims 14 Plaintiff may be attempting to allege state law claims against Defendants. “California’s 15 Government Claims Act requires that a tort claim against a [state] public entity or its employees 16 for money or damages be presented to the California Victim Compensation and Government 17 Claims Board . . . no more than six months after the cause of action accrues.” Lopez v. Cate, No. 18 1:10-cv-01773-AWI, 2015 WL 1293450, at *13 (E.D. Cal. 2015) (citing Cal. Gov’t Code 19 §§ 905.2, 910, 911.2, 945.4, 950–950.2). Such compliance must be affirmatively alleged. 20 “Timely claim presentation is not merely a procedural requirement, but is . . . a condition 21 precedent to plaintiff’s maintaining an action against defendant and thus an element of the 22 plaintiff’s cause of action.” Id. (internal quotation marks and citations omitted). The “obligation 23 to comply with the Government Claims Act” is independent of the obligation to exhaust 24 administrative remedies pursuant to the Prison Litigation Reform Act (“PLRA”). McPherson v. 25 Alamo, No. 3:15-cv-03145-EMC, 2016 WL 7157634, at *6 (N.D. Cal. 2016) (citing Parthemore 26 v. Col, 221 Cal. App. 4th 1372, 1376 (2013)). 27 Plaintiff does not allege that he presented a claim to the California Government Claims 28 Program (the successor to the Victim Compensation and Government Claims Board) within six 1 months of the incidents underlying this action. Thus, Plaintiff’s state law claims, to the extent he 2 raises any, are not cognizable. Pradia v. Becerra, No. 1:20-CV-01348 JLT (PC), 2021 WL 3 1839613, at *4 (E.D. Cal. May 7, 2021); see Harris v. Escamilla, 736 F. App’x 618, 621 (9th Cir. 4 2018) (affirming dismissal of state-law claim because plaintiff did “not allege[ ] that he submitted 5 an administrative claim before bringing . . . lawsuit, as required by the Government Claims Act”) 6 (citation omitted). 7 11. Workers’ Compensation 8 The allegations are unclear about Plaintiff’s claim for workers’ compensation. 9 California’s Workers’ Compensation Act grants the Workers’ Compensation Appeals 10 Board exclusive authority to hear claims “[f]or the recovery of [workers’] compensation, or 11 concerning any right or liability arising out of or incidental thereto.” Cal. Labor Code § 5300(a); 12 see also U.S. Fid. & Guar. Co. v. Lee Invs. LLC, 641 F.3d 1126, 1134 (9th Cir. 2011). The 13 statute establishes “exclusive jurisdiction within the workers’ compensation system for ‘all 14 disputes over coverage and payment.’ “ Mitchell v. Scott Wetzel Servs., Inc., 227 Cal. App. 3d 15 1474, 1480 (1991) (quoting Marsh v. McLennan, Inc., 49 Cal 3d 1, 7–8 (1989)). For this reason, 16 other district courts in California have refused to entertain claims involving worker’s 17 compensation benefits, brought by inmate workers who have been injured in prison. See 18 Rodriguez v. State Comp. Ins. Fund, No. 05-cv-2600 LKK GGH, 2006 WL 8458934, at *3 (E.D. 19 Cal. Jan. 9, 2006) (“The mere denial of workman’s compensation by the State Insurance 20 Compensation Fund does not present a federal question.”); Ledesma v. Cal. Rehab. Ctr., No. 15- 21 cv-2638 FMO JPR, 2016 WL 1165920, at *3 (C.D. Cal. Feb. 16, 2016), report and 22 recommendation adopted, 2016 WL 1170885 (C.D. Cal. Mar. 24, 2016); Montgomery v. Cal. 23 Worker’s Comp. Appeals Bd., No. 10-cv-3076 CL, 2011 WL 2470080, at *3 (D. Or. May 9, 24 2011), report and recommendation adopted, 2011 WL 2462938 (D. Or. June 20, 2011). As the 25 magistrate judge explained in Montgomery, “[r]egardless of the label placed on plaintiff’s 26 claims . . . [their] gravamen . . . relate to denial of worker’s compensation benefits which plaintiff 27 believes are due him” and thus they “are barred by the exclusive remedy provided by the 28 California workers’ compensation system.” Id. (citations omitted). Because exclusive 1 jurisdiction is vested in the California workers’ compensation system, this Court lacks jurisdiction 2 over plaintiff’s worker’s compensation claims. 3 12. Doe Defendants 4 Plaintiff names several doe defendants. “As a general rule, the use of ‘John Doe’ to 5 identify a defendant is not favored.” Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). 6 Plaintiff is advised that John Doe or Jane Doe defendants (i.e., unknown defendants) cannot be 7 served by the United States Marshal until Plaintiff has identified them as actual individuals and 8 amended his complaint to substitute names for John Doe or Jane Doe. 9 III. Failure to Prosecute and Failure to Obey a Court Order 10 A. Legal Standard 11 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 12 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 13 within the inherent power of the Court.” District courts have the inherent power to control their 14 dockets and “[i]n the exercise of that power they may impose sanctions including, where 15 appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 16 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 17 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 18 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 19 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 20 amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) 21 (dismissal for failure to comply with court order). 22 In determining whether to dismiss an action, the Court must consider several factors: 23 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 24 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 25 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 26 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 27 /// 28 /// 1 B. Discussion 2 Here, Plaintiff’s first amended complaint is overdue, and he has failed to comply with the 3 Court’s orders. The Court cannot effectively manage its docket if Plaintiff ceases litigating his 4 case. Thus, the Court finds that both the first and second factors weigh in favor of dismissal. 5 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a 6 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 7 Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against 8 dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 9 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose 10 responsibility it is to move a case toward disposition on the merits but whose conduct impedes 11 progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Products 12 Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted). 13 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 14 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 15 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s August 25, 2022 screening 16 order expressly warned Plaintiff that his failure to file an amended complaint would result in a 17 recommendation of dismissal of this action, with prejudice, for failure to obey a court order and 18 for failure to state a claim. (ECF No. 5, p. 21.) In addition, the Court’s October 3, 2022 and 19 November 7, 2022 orders granting extensions of time for Plaintiff to file his amended complaint 20 also warned Plaintiff that failure to file a first amended complaint would result in a 21 recommendation of dismissal of this action, with prejudice, for failure to obey a court order and 22 for failure to state a claim. (ECF Nos. 7, p. 2; 9, p. 3.) Finally, the Court’s January 18, 2023 23 order vacating the previous findings and recommendations and granting Plaintiff a further 24 extension of time again warned Plaintiff that a failure to file a first amended complaint would 25 result in dismissal of this action, with prejudice, for failure to obey a court order and failure to 26 state a claim. (ECF No. 12, p. 3.) Thus, Plaintiff had adequate warning that dismissal could 27 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. Recommendation 7 Accordingly, the Court finds that dismissal is the appropriate sanction and HEREBY 8 RECOMMENDS that this action be dismissed, with prejudice, for failure to state a claim 9 pursuant to 28 U.S.C. § 1915A, for failure to obey court orders, and for Plaintiff’s failure to 10 prosecute this action. 11 These Findings and Recommendation will be submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 13 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 14 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 15 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 16 specified time may result in the waiver of the “right to challenge the magistrate’s factual 17 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 18 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 19 IT IS SO ORDERED. 20

21 Dated: March 1, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 22

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