1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 DIMITRI Z. STORM, Case No. 1:24-cv-00236-KES-BAM (PC) 7 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION, WITH PREJUDICE, FOR 8 v. FAILURE TO STATE A CLAIM, FAILURE TO OBEY COURT ORDER, AND FAILURE 9 NEWSOM, et al., TO PROSECUTE 10 Defendants. (ECF No. 9) 11 FOURTEEN (14) DAY DEADLINE 12 13 I. Background 14 Plaintiff Dimitri Z. Storm (“Plaintiff”) is a state prisoner proceeding pro se and in forma 15 pauperis in this civil rights action under 42 U.S.C. § 1983. 16 On August 22, 2024, the Court screened the complaint and found that it failed to comply 17 with Federal Rule of Civil Procedure 8 and failed to state a cognizable claim for relief. (ECF No. 18 9.) The Court issued a screening order granting Plaintiff leave to file a first amended complaint 19 or a notice of voluntary dismissal within thirty (30) days. (Id.) The Court expressly warned 20 Plaintiff that the failure to comply with the Court’s order would result in a recommendation for 21 dismissal of this action, with prejudice. (Id. at 8.) Plaintiff failed to file an amended complaint or 22 otherwise communicate with the Court, and the deadline to do so has expired.1 23 II. Failure to State a Claim 24 A. Screening Requirement 25 The Court is required to screen complaints brought by prisoners seeking relief against a 26 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C.
27 1 On August 23, 2024, the Court also issued findings and recommendations denying Plaintiff’s motion for restraining order and preliminary injunction. (ECF No. 11.) Plaintiff did not file objections or otherwise respond to the findings 28 and recommendations, which are now pending before the assigned District Judge. 1 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 2 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 3 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 4 A complaint must contain “a short and plain statement of the claim showing that the 5 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 6 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 7 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 8 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 9 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 10 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 11 To survive screening, Plaintiff’s claims must be facially plausible, which requires 12 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 13 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 14 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 15 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 16 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 17 B. Plaintiff’s Allegations 18 Plaintiff is currently housed at California Substance Abuse Treatment Facility (“SATF”). 19 Plaintiff names as defendants: (1) Gavin Newsom, Governor, (2) Robert Bonta, California 20 Attorney General, (3) B. Phillips, Warden of SATF. Plaintiff also attempts to name defendants 21 “CSATF CDCR staff: all.” As best the Court can determine, Plaintiff alleges as follows.2 22 Plaintiff alleges the Warden of SATF, officers of California Department of Corrections 23 Rehabilitation (“CDCR”), and staff at SATF have been involved in handling Plaintiff’s property 24 and effects. Plaintiff alleges they are now in possession of his J-Pay tablet that was illegally
25 2 On the form complaint, Plaintiff has checked the box that the complaint is pursuant to 28 U.S.C §1343(a) and 42 U.S.C. §1983. Plaintiff has also entitled the complaint as “Writ Habeas Corpus” and Petition for Preliminary 26 Injunction. The Court addressed the request for a preliminary injunction by separate order. To the extent Plaintiff is attempting to challenge his conviction or the validity of his continued confinement, the exclusive method for 27 asserting that challenge is by filing a petition for a writ of habeas corpus. It has long been established that state prisoners cannot challenge the fact or duration of their confinement in a section 1983 action and their sole remedy 28 lies in habeas corpus relief. Wilkinson v. Dotson, 544 U.S. 74, 78 (2005). 1 stolen along with legal documents and files sent to Plaintiff from the FBI, CIA, and DIA and 2 other entities. They engaged in a conspiracy to defraud and steal Plaintiff’s personal property. 3 SATF “E” Facility CDCR officers still have possession of his stolen J-pay tablet and his legal 4 documents and files that they stole from Plaintiff on March 21, 2023 in Building #5. Plaintiff 5 alleges conspiracy, theft, forgery involving CDCR officers for false statements and false reports 6 and tampering with evidence. 7 C. Discussion 8 Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8 and fails to 9 state a cognizable claim under 42 U.S.C. § 1983. 10 1. Federal Rule of Civil Procedure 8 11 Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and plain 12 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). 13 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause 14 of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 15 (citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a 16 claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. 17 at 555). While factual allegations are accepted as true, legal conclusions are not. Id.; see also 18 Twombly, 550 U.S. at 556–57. 19 Plaintiff’s complaint is relatively short but it is not plain statement of his claims. Many of 20 Plaintiff’s allegations are conclusory do not state what happened, when it happened, or which 21 defendant was involved. He fails to state the factual basis for the conclusions. 22 In addition, Plaintiff attaches numerous exhibits to his complaint.
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1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 DIMITRI Z. STORM, Case No. 1:24-cv-00236-KES-BAM (PC) 7 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION, WITH PREJUDICE, FOR 8 v. FAILURE TO STATE A CLAIM, FAILURE TO OBEY COURT ORDER, AND FAILURE 9 NEWSOM, et al., TO PROSECUTE 10 Defendants. (ECF No. 9) 11 FOURTEEN (14) DAY DEADLINE 12 13 I. Background 14 Plaintiff Dimitri Z. Storm (“Plaintiff”) is a state prisoner proceeding pro se and in forma 15 pauperis in this civil rights action under 42 U.S.C. § 1983. 16 On August 22, 2024, the Court screened the complaint and found that it failed to comply 17 with Federal Rule of Civil Procedure 8 and failed to state a cognizable claim for relief. (ECF No. 18 9.) The Court issued a screening order granting Plaintiff leave to file a first amended complaint 19 or a notice of voluntary dismissal within thirty (30) days. (Id.) The Court expressly warned 20 Plaintiff that the failure to comply with the Court’s order would result in a recommendation for 21 dismissal of this action, with prejudice. (Id. at 8.) Plaintiff failed to file an amended complaint or 22 otherwise communicate with the Court, and the deadline to do so has expired.1 23 II. Failure to State a Claim 24 A. Screening Requirement 25 The Court is required to screen complaints brought by prisoners seeking relief against a 26 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C.
27 1 On August 23, 2024, the Court also issued findings and recommendations denying Plaintiff’s motion for restraining order and preliminary injunction. (ECF No. 11.) Plaintiff did not file objections or otherwise respond to the findings 28 and recommendations, which are now pending before the assigned District Judge. 1 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 2 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 3 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 4 A complaint must contain “a short and plain statement of the claim showing that the 5 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 6 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 7 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 8 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 9 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 10 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 11 To survive screening, Plaintiff’s claims must be facially plausible, which requires 12 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 13 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 14 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 15 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 16 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 17 B. Plaintiff’s Allegations 18 Plaintiff is currently housed at California Substance Abuse Treatment Facility (“SATF”). 19 Plaintiff names as defendants: (1) Gavin Newsom, Governor, (2) Robert Bonta, California 20 Attorney General, (3) B. Phillips, Warden of SATF. Plaintiff also attempts to name defendants 21 “CSATF CDCR staff: all.” As best the Court can determine, Plaintiff alleges as follows.2 22 Plaintiff alleges the Warden of SATF, officers of California Department of Corrections 23 Rehabilitation (“CDCR”), and staff at SATF have been involved in handling Plaintiff’s property 24 and effects. Plaintiff alleges they are now in possession of his J-Pay tablet that was illegally
25 2 On the form complaint, Plaintiff has checked the box that the complaint is pursuant to 28 U.S.C §1343(a) and 42 U.S.C. §1983. Plaintiff has also entitled the complaint as “Writ Habeas Corpus” and Petition for Preliminary 26 Injunction. The Court addressed the request for a preliminary injunction by separate order. To the extent Plaintiff is attempting to challenge his conviction or the validity of his continued confinement, the exclusive method for 27 asserting that challenge is by filing a petition for a writ of habeas corpus. It has long been established that state prisoners cannot challenge the fact or duration of their confinement in a section 1983 action and their sole remedy 28 lies in habeas corpus relief. Wilkinson v. Dotson, 544 U.S. 74, 78 (2005). 1 stolen along with legal documents and files sent to Plaintiff from the FBI, CIA, and DIA and 2 other entities. They engaged in a conspiracy to defraud and steal Plaintiff’s personal property. 3 SATF “E” Facility CDCR officers still have possession of his stolen J-pay tablet and his legal 4 documents and files that they stole from Plaintiff on March 21, 2023 in Building #5. Plaintiff 5 alleges conspiracy, theft, forgery involving CDCR officers for false statements and false reports 6 and tampering with evidence. 7 C. Discussion 8 Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8 and fails to 9 state a cognizable claim under 42 U.S.C. § 1983. 10 1. Federal Rule of Civil Procedure 8 11 Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and plain 12 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). 13 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause 14 of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 15 (citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a 16 claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. 17 at 555). While factual allegations are accepted as true, legal conclusions are not. Id.; see also 18 Twombly, 550 U.S. at 556–57. 19 Plaintiff’s complaint is relatively short but it is not plain statement of his claims. Many of 20 Plaintiff’s allegations are conclusory do not state what happened, when it happened, or which 21 defendant was involved. He fails to state the factual basis for the conclusions. 22 In addition, Plaintiff attaches numerous exhibits to his complaint. While “much liberality 23 is allowed in construing pro se complaints, a pro se litigant cannot simply dump a stack of 24 exhibits on the court and expect the court to sift through them to determine if some nugget is 25 buried somewhere in that mountain of papers, waiting to be unearthed and refined into a 26 cognizable claim.” Samtani v. City of Laredo, 274 F. Supp. 3d 695, 698 (S.D. Tex. 2017). “The 27 Court will not comb through attached exhibits seeking to determine whether a claim possibly 28 could have been stated where the pleading itself does not state a claim. In short, [Plaintiff] must 1 state a claim, not merely attach exhibits.” Stewart v. Nevada, No. 2:09-CV-01063-PMP-GWF, 2 2011 WL 588485, at *2 (D. Nev. Feb. 9, 2011). 3 2. Linkage Requirement 4 The Civil Rights Act under which this action was filed provides:
5 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, privileges, or 6 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 redress. 7 8 42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or link between 9 the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See 10 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The 11 Ninth Circuit has held that “[a] person ‘subjects’ another to the deprivation of a constitutional 12 right, within the meaning of section 1983, if he does an affirmative act, participates in another’s 13 affirmative acts or omits to perform an act which he is legally required to do that causes the 14 deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 15 Here, Plaintiff’s complaint fails to link any Defendant to any wrongful conduct. Further, 16 Plaintiff refers to all CDCR officers and staff as defendants, but fails to name any specific officer 17 or staff person as a defendant and link that specific person to allegedly wrongful conduct. The 18 complaint’s caption must contain the names of the defendants discussed in the body of the 19 complaint. See Fed. R. Civ. P. 10(a) (Rule 10(a) requires that plaintiffs include the names of all 20 parties in the caption of the complaint). Groups of defendants violate Rule 10. 21 3. Supervisor Liability 22 Insofar as Plaintiff is attempting to sue Defendant Warden, or any other defendant, based 23 solely upon his supervisory role, he may not do so. Liability may not be imposed on supervisory 24 personnel for the actions or omissions of their subordinates under the theory of respondeat 25 superior. Iqbal, 556 U.S. at 676–77; Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1020–21 (9th 26 Cir. 2010); Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir. 2009); Jones v. Williams, 27 297 F.3d 930, 934 (9th Cir. 2002). 28 /// 1 Supervisors may be held liable only if they “participated in or directed the violations, or 2 knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 3 (9th Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011); Corales v. 4 Bennett, 567 F.3d 554, 570 (9th Cir. 2009). “The requisite causal connection may be established 5 when an official sets in motion a ‘series of acts by others which the actor knows or reasonably 6 should know would cause others to inflict’ constitutional harms.” Corales v. Bennett, 567 F.3d at 7 570. Supervisory liability may also exist without any personal participation if the official 8 implemented “a policy so deficient that the policy itself is a repudiation of the constitutional 9 rights and is the moving force of the constitutional violation.” Redman v. Cty. of San Diego, 942 10 F.2d 1435, 1446 (9th Cir. 1991) (citations and quotations marks omitted), abrogated on other 11 grounds by Farmer v. Brennan, 511 U.S. 825 (1970). When a defendant holds a supervisory 12 position, the causal link between such defendant and the claimed constitutional violation must be 13 specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 14 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations concerning the involvement 15 of supervisory personnel in civil rights violations are not sufficient. See Ivey v. Board of Regents, 16 673 F.2d 266, 268 (9th Cir. 1982). 17 4. Fourteenth Amendment – Property Deprivation 18 Insofar as Plaintiff also alleges that any Defendant wrongfully took his property, these 19 allegations also are not sufficient to support a cognizable claim. Prisoners have a protected 20 interest in their personal property. Hansen v. May, 502 F.2d 728, 730 (9th Cir. 1974). An 21 authorized, intentional deprivation of property is actionable under the Due Process Clause. See 22 Hudson v. Palmer, 468 U.S. 517, 532 n.13 (1984) (citing Logan v. Zimmerman Brush Co., 455 23 U.S. 422, 435–36 (1982)); Quick v. Jones, 754 F.2d 1521, 1524 (9th Cir. 1985). However, “an 24 unauthorized intentional deprivation of property by a state employee does not constitute a 25 violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment 26 if a meaningful post deprivation remedy for the loss is available.” Hudson, 468 U.S. at 533. 27 Plaintiff contends that unnamed CDCR officers and staff took his property. As it appears 28 that such conduct was an unauthorized deprivation of property, due process is satisfied if there is 1 a meaningful post-deprivation remedy available to Plaintiff. Id. Plaintiff has an adequate post- 2 deprivation remedy available under California law. Barnett v. Centoni, 31 F.3d 813, 816–17 (9th 3 Cir. 1994) (citing Cal. Gov’t Code §§ 810–95). Therefore, Plaintiff fails to allege a cognizable 4 due process claim for the alleged deprivation of his property. 5 5. False Reports 6 The creation of false evidence, standing alone, is not actionable under § 1983. See 7 Hernandez v. Johnston, 833 F.2d 1316, 1319 (9th Cir. 1987) (independent right to accurate prison 8 record has not been recognized); Johnson v. Felker, No. 1:12–cv–02719 GEB KJN (PC), 2013 9 WL 6243280, at *6 (E.D. Cal. Dec. 3, 2013) (“Prisoners have no constitutionally guaranteed right 10 to be free from false accusations of misconduct, so the mere falsification of a report does not give 11 rise to a claim under section 1983.”) (citations omitted). Moreover, “plaintiff cannot state a 12 cognizable Eighth Amendment violation based on an allegation that defendant[ ] issued a false 13 rule violation against plaintiff.” Jones v. Prater, No. 2:10-cv-01381 JAM KJN P, 2012 WL 14 1979225, at *2 (E.D. Cal. Jun. 1, 2012); see also Youngs v. Barretto, No. 2:16-cv-0276 JAM AC 15 P, 2018 WL 2198707, at *3 (E.D. Cal. May 14, 2019) (noting that issuance of false rules violation 16 report does not rise to the level of cruel and unusual punishment) (citations omitted). 17 Accordingly, Plaintiff’s complaint does not state a cognizable claim against any 18 Defendant for an allegedly falsified statement. 19 6. Conspiracy 20 To state a claim for conspiracy under section 1983, Plaintiff must show the existence of an 21 agreement or a meeting of the minds to violate his constitutional rights, and an actual deprivation 22 of those constitutional rights. Avalos v. Baca, 596 F.3d 583, 592 (9th Cir.2010); Franklin v. Fox, 23 312 F.3d 423, 441 (9th Cir. 2001). To have standing to bring this type of claim, Plaintiff must 24 also allege he suffered an actual injury. Vandelft v. Moses, 31 F.3d 794, 798 (9th Cir. 1994). To 25 establish a conspiracy, Plaintiff allege specific facts showing “an agreement or meeting of the 26 minds to violate constitutional rights. To be liable, each participant in the conspiracy need not 27 know the exact details of the plan, but each participant must at least share the common objective 28 of the conspiracy.” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002) (internal citations and 1 quotation marks omitted). The mere conclusory statement that defendants “conspired” together is 2 not sufficient to state a cognizable claim. Woodrum v. Woodward Cty., 866 F.2d 1121, 1126 (9th 3 Cir. 1989). 4 Plaintiff makes general, omnibus allegations that the Defendants engaged in some 5 conspiracy. Plaintiff must plead the basic elements of a civil conspiracy: an agreement and 6 concerted action amongst the defendants in the furtherance of that agreement, and that each 7 defendant conspired to violate Plaintiff’s constitutional rights. See also Kendall v. Visa U.S.A., 8 Inc., 518 F.3d 1042, 1047 (9th Cir. 2008) (noting that a bare allegation of a conspiracy is almost 9 impossible to defend against where numerous individuals are concerned). 10 7. State Law Claims 11 To the extent Plaintiff also alleges violations of California law, Plaintiff is informed that 12 the California Government Claims Act requires that a tort claim against a public entity or its 13 employees be presented to the California Victim Compensation and Government Claims Board 14 no more than six months after the cause of action accrues. Cal. Gov’t Code §§ 905.2, 910, 911.2, 15 945.4, 950-950.2. Presentation of a written claim, and action on or rejection of the claim are 16 conditions precedent to suit. State v. Super. Ct. of Kings Cnty. (Bodde), 32 Cal.4th 1234, 1239 17 (Cal. 2004); Shirk v. Vista Unified Sch. Dist., 42 Cal.4th 201, 209 (2007). To state a tort claim 18 against a public employee, a plaintiff must allege compliance with the California Tort Claims 19 Act. Cal. Gov’t Code § 950.6; Bodde, 32 Cal. 4th at 1244. “[F]ailure to allege facts demonstrating 20 or excusing compliance with the requirement subjects a complaint to general demurrer for failure 21 to state a cause of action.” Bodde, 32 Cal.4th at 1239. 22 Plaintiff does not allege that he has complied with the Government Claims Act. 23 III. Failure to Prosecute and Failure to Obey a Court Order 24 A. Legal Standard 25 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 26 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 27 within the inherent power of the Court.” District courts have the inherent power to control their 28 dockets and “[i]n the exercise of that power they may impose sanctions including, where 1 appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 2 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 3 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 4 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 5 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 6 amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) 7 (dismissal for failure to comply with court order). 8 In determining whether to dismiss an action, the Court must consider several factors: 9 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 10 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 11 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 12 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 13 B. Discussion 14 Here, Plaintiff’s first amended complaint is overdue, and he has failed to comply with the 15 Court’s order. The Court cannot effectively manage its docket if Plaintiff ceases litigating his 16 case. Thus, the Court finds that both the first and second factors weigh in favor of dismissal. 17 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a 18 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 19 Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against 20 dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 21 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose 22 responsibility it is to move a case toward disposition on the merits but whose conduct impedes 23 progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Products 24 Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted). 25 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 26 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 27 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s August 22, 2024 screening 28 order expressly warned Plaintiff that his failure to file an amended complaint would result in a 1 recommendation of dismissal of this action, with prejudice, for failure to obey a court order and 2 for failure to state a claim. (ECF No. 9, p. 8.) Thus, Plaintiff had adequate warning that dismissal 3 could result from his noncompliance. 4 Additionally, at this stage in the proceedings there is little available to the Court that 5 would constitute a satisfactory lesser sanction while protecting the Court from further 6 unnecessary expenditure of its scarce resources. As Plaintiff is proceeding in forma pauperis in 7 this action, it appears that monetary sanctions will be of little use and the preclusion of evidence 8 or witnesses is likely to have no effect given that Plaintiff has ceased litigating his case. 9 IV. Conclusion and Recommendation 10 Accordingly, the Court finds that dismissal is the appropriate sanction and HEREBY 11 RECOMMENDS that this action be dismissed, with prejudice, for failure to state a claim, for 12 failure to obey a court order, and for Plaintiff’s failure to 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.” Objections, if any, shall not exceed fifteen (15) pages or 18 include exhibits. Exhibits may be referenced by document and page number if already in 19 the record before the Court. Any pages filed in excess of the 15-page limit may not be 20 considered. Plaintiff is advised that failure to file objections within the specified time may result 21 in the waiver of the “right to challenge the magistrate’s factual findings” on appeal. Wilkerson v. 22 Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th 23 Cir. 1991)). 24 IT IS SO ORDERED. 25
26 Dated: October 10, 2024 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 27