(PC) Zamora v. Cates

Opinion

6 UNITED STATES DISTRICT COURT 7 8 EASTERN DISTRICT OF CALIFORNIA 9 SANTIAGO MANUEL ZAMORA, Case No. 1:23-cv-00373-SAB (PC) 10 Plaintiff, ORDER DIRECTING CLERK OF COURT 11 TO RANDOMLY ASSIGN A DISTRICT v. JUDGE TO THIS ACTION 12 B. CATES, et al., FINDINGS AND RECOMMENDATIONS 13 RECOMMENDING DISMISSAL OF Defendants. ACTION 14 (ECF No. 12) 15

16 17 Plaintiff Santiago Manuel Zamora is proceeding pro se and in forma pauperis in this 18 civil rights action filed pursuant to 42 U.S.C. § 1983. This matter was referred to a United 19 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. Plaintiff’s 20 complaint in this action was filed on March 10, 2023. (ECF No. 1.) 21 On April 7, 2023, the Court screened the complaint, found that Plaintiff stated a 22 cognizable retaliation claim against only Defendant Rodriguez, and granted Plaintiff thirty days 23 to file an amended complaint or notify the Court of his intent to proceed only on the retaliation 24 claim. (ECF No. 11.) 25 Plaintiff failed to file an amended complaint or otherwise respond to the April 7, 2023 26 order. Therefore, on May 18, 2023, the Court issued an order for Plaintiff to show cause why 27 the action should not be dismissed. (ECF No. 12.) Plaintiff has failed to respond to the order to show cause and the time to do so has now passed. Accordingly, dismissal of the action is 1 warranted. 2 I. 3 SCREENING REQUIREMENT 4 The Court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 6 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 7 “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that 8 “seek[] monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 9 1915(e)(2)(B); see also 28 U.S.C. § 1915A(b). 10 A complaint must contain “a short and plain statement of the claim showing that the pleader 11 is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 12 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory 13 statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic 14 Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each 15 defendant personally participated in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 16 F.3d 930, 934 (9th Cir. 2002). 17 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings 18 liberally construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 19 1113, 1121 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be 20 facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer 21 that each named defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss 22 v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant 23 has acted unlawfully” is not sufficient, and “facts that are ‘merely consistent with’ a defendant’s 24 liability” falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d 25 at 969. 26 /// 27 /// 1 II. 2 SUMMARY OF ALLEGATIONS 3 On or about April/May 2022, a disciplinary hearing was held in violation of Plaintiff due 4 process rights. Lieutenant Rodriguez in the presence of officer Banuelos served as the senior 5 hearing officer. Plaintiff presented overwhelming evidence in defense which was disregarded by 6 Rodriguez. Rodriguez relied solely on the allegations in disregard of Plaintiff due process rights. 7 Plaintiff was found guilty for which retaliation ensued and progressed after he filed a grievance. 8 On or about July 13, 2022, while at California Correctional Institution in Tehachapi, 9 Plaintiff was sexually assaulted and set up with contraband in retaliation by officer Rodriguez. 10 On this date, officers Rodriguez and Fernandez conducted the fourth random search of his cell in 11 four weeks. When conducting the second strip search in a day, officer Rodriguez shoved his 12 finger into Plaintiff’s anal cavity. Plaintiff told Rodriguez that he would file a Prison Rape 13 Elimination Act (PREA) to which Rodriguez said he had something better than PREA. After 14 Plaintiff was ordered to sit out of view of his cell, lieutenant Robinson and officer Burgess 15 conducted a lengthy search of Plaintiff’s cell. At the conclusion, officer Rodriguez approached 16 Plaintiff and said, “We found a cell phone charger in your light fixture you will be receiving an 17 RVR and losing your family visits.” Plaintiff stated, “That’s bullshit, you set me up,” to which 18 Rodriguez responded, “Yeah I did set you up what are you going to do about it.” Plaintiff reported 19 PREA on the following morning to nursing staff. Outside agencies swabbed Plaintiff for DNA 20 and recorded his injuries. 21 On or about July 29, 2022, Plaintiff was assaulted/battered and falsely imprisoned by 22 officer Banuelos in retaliation. On this date, Plaintiff was headed to the program office to speak 23 with a sergeant or lieutenant regarding his due process rights. Officer Banuelos approached 24 Plaintiff in a threatening manner and was angry about incidents that did not concern him. Officer 25 Banuelos handcuffed Plaintiff without cause and restrained his free movement. Banuelos yanked 26 Plaintiff’s hands that were cuffed behind him and attempt to rile his coworkers to fabricate a staff 27 assault by beating Plaintiff. Banuelos stated, “Are you pulling away from me? Quit pulling away 1 and proper protocol was not followed. Plaintiff subsequently submitted an inmate grievance to 2 no avail. 3 On January 24, 2023, Banuelos followed up with a fabricated staff assault. 4 III. 5 DISCUSSION 6 A. Retaliation 7 “Prisoners have a First Amendment right to file grievances against prison officials and to 8 be free from retaliation for doing so.” Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) 9 (citing Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009)). “Within the prison context, a 10 viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a 11 state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected 12 conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and 13 (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 14 408 F.3d 559, 567-68 (9th Cir. 2005). To state a cognizable retaliation claim, Plaintiff must 15 establish a nexus between the retaliatory act and the protected activity. Grenning v. Klemme, 34 16 F.Supp.3d 1144, 1153 (E.D. Wash. 2014). Mere verbal harassment or abuse does not violate the 17 Constitution and, thus, does not give rise to a claim for relief under 42 U.S.C. § 1983. Oltarzewski 18 v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). In addition, threats do not rise to the level of a 19 constitutional violation. Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987). 20 Prisoners do not have a liberty interest in being free from false accusations of misconduct. 21 This means that the falsification of a report, even when intentional, does not alone give rise to a 22 claim under § 1983. Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir. 1986) (“The prison inmate 23 has no constitutionally guaranteed immunity from being falsely or wrongly accused of conduct 24 which may result in the deprivation of a protected liberty interest.”); Buckley v. Gomez, 36 F. 25 Supp. 2d 1216, 1222 (S.D. Cal. 1997) (stating that “a prisoner does not have a constitutional right 26 to be free from wrongfully issued disciplinary reports[ ]”). 27 However, there are two ways that allegations that an inmate has been subjected to a false 1 false disciplinary report was filed in retaliation for his exercise of a constitutional right; and (2) 2 when the prisoner alleges that they were not afforded procedural due process in a proceeding 3 concerning a false report. See Hines v. Gomez, 108 F.3d 265, 269 (9th Cir. 1997) (discussing 4 retaliation claim against a correctional officer based upon the correctional officer's false 5 accusations of violating a prison rule); Freeman, 808 F.2d at 951 (holding that the filing of a false 6 disciplinary charge against a prisoner is not actionable under § 1983 if prison officials provide 7 the prisoner with procedural due process protections); Hanrahan v. Lane, 747 F.2d 1137, 1140- 8 41 (7th Cir. 1984) (same). 9 A plaintiff must plead facts that suggest that retaliation for the exercise of protected 10 conduct was the “substantial” or “motivating” factor behind the defendant's conduct. action. 11 Brodheim v. Cry, 584 F.3d at 1270 (9th Cir. 2009); Soranno's Gasco, Inc. v. Morgan, 874 F.2d 12 1310, 1314 (9th Cir. 1989); see also Capp v. Cnty. of San Diego, 940 F.3d 1046, 1053 (9th Cir. 13 2019) (“[P]laintiff must show that the defendant's retaliatory animus was ‘a “but-for” cause, 14 meaning that the adverse action against the plaintiff would not have been taken absent the 15 retaliatory motive.’ ”) (citation omitted). A causal connection between the adverse action and the 16 protected conduct can be alleged by an allegation of a chronology of events from which retaliation 17 can be inferred. Watison v. Carter, 668 F.3d at 1114. The filing of grievances and the pursuit of 18 civil rights litigation against prison officials are both protected activities. Rhodes v. Robinson, 19 408 F.3d at 567-68. The plaintiff must allege either a chilling effect on future First Amendment 20 activities, or that he suffered some other harm that is “more than minimal.” Watison v. Carter, 21 668 F.3d at 1114. “[A]n objective standard governs the chilling inquiry; a plaintiff does not have 22 to show that ‘his speech was actually inhibited or suppressed,’ but rather that the adverse action 23 at issue ‘would chill or silence a person of ordinary firmness from future First Amendment 24 activities.’ ” Brodheim v. Cry, 584 F.3d at 1271 (quoting Rhodes v. Robinson, 408 F.3d at 568- 25 69). Accordingly, the plaintiff need not allege an explicit, specific threat. Brodheim v. Cry, 584 26 F.3d at 1270. A plaintiff successfully pleads that the action did not reasonably advance a 27 legitimate correctional goal by alleging, in addition to a retaliatory motive, that the defendant's 1 actions were “arbitrary and capricious” or that they were “unnecessary to the maintenance of 2 order in the institution.” Watison v. Carter, 668 F.3d at 1114. 3 Plaintiff’s allegations are sufficient to state a cognizable retaliation claim against 4 Defendant Rodriguez only. As to Defendant Banuelos Plaintiff fails to allege sufficient facts to 5 sustain a retaliation claim. Although Plaintiff alleges that he was assaulted/battered and falsely 6 imprisoned by officer Banuelos in retaliation, there are insufficient to demonstrate that Defendant 7 Banuelos was aware of any prior grievance or how his actions were motivated by the filing of 8 such prior grievances. Further, there are insufficient facts to demonstrate that the alleged false 9 staff report was because of (or even with knowledge of) any alleged protected conduct of 10 Plaintiff.” Gallegos v. Murray, No. CV 18-9505-CJC(E), 2019 WL 6729689, at *2; see also, 11 Burghardt v. Borges, No. 1:17-cv-01433-AWI-GSA-PC, 2019 WL 3231213, at *8 (E.D. Cal. July 12 18, 2019) (“Plaintiff has not alleged facts demonstrating that Defendants acted against him 13 because he filed grievances. Plaintiff has not established a causal connection between his 14 protected conduct and the claimed adverse actions. The mere statement that Defendants 15 ‘retaliated’ against him or acted ‘in retaliation’ is not sufficient to state a claim.” (emphasis in 16 original)). Accordingly, Plaintiff states a cognizable retaliation claim against only Defendant 17 Rodriguez. 18 B. Excessive Force 19 When prison officials use excessive force against prisoners, they violate the inmates’ 20 Eighth Amendment right to be free from cruel and unusual punishment.” Clement v. Gomez, 298 21 F.3d 898, 903 (9th Cir. 2002). To establish a claim for the use of excessive force in violation of 22 the Eighth Amendment, a plaintiff must establish that prison officials applied force maliciously 23 and sadistically to cause harm, rather than in a good-faith effort to maintain or restore discipline. 24 Hudson v. McMillian, 503 U.S. 1, 6–7 (1992). In making this determination, the court may 25 evaluate (1) the need for application of force, (2) the relationship between that need and the 26 amount of force used, (3) the threat reasonably perceived by the responsible officials, and (4) any 27 efforts made to temper the severity of a forceful response. Id. at 7; see also id. at 9–10 (“The 1 constitutional recognition de minimis uses of physical force, provided that the use of force is not 2 of a sort repugnant to the conscience of mankind.” (internal quotation marks and citations 3 omitted)). 4 In the Eighth Amendment context, the Ninth Circuit has held that mere threats of bodily 5 injury by guards against an inmate fail to state a cause of action. Gaut v. Sunn, 810 F.2d 923, 925 6 (9th Cir. 1987) (per curiam) (it “trivializes the eighth amendment to believe a threat constitutes a 7 constitutional wrong.”). To state an Eighth Amendment claim involving a threat by a prison 8 official, the Plaintiff must allege circumstances that demonstrate a verbal threat of deadly force 9 accompanied by the intent to carry out that threat or, in other words, an objective or subjective 10 substantial risk of harm. See Oliver v. Noll, No. C 09-3840 RMW (PR), 2012 WL 2055033, at 11 *2-3 (N.D. Cal. June 5, 2012) (citing cases); Parker v. Asher, 701 F. Supp 192, 195 (D. Nev. 12 1988) (concluding that an allegation of verbal threats and aiming a loaded taser gun at an inmate 13 states a cognizable claim of cruel and unusual punishment); Northington v. Jackson, 973 F.2d 14 1518, 1522-24 (10th Cir. 1992) (reversing dismissal of section 1983 action where state actor “put 15 a revolver to [plaintiff's] head without identifying himself as a corrections officer, [and] 16 threatened to kill him). 17 To the extent Plaintiff seeks to raise an independent claim for excessive force, such 18 claim fails. Plaintiff alleges only that officer Banuelos handcuffed Plaintiff without cause 19 yanked his in an attempt to rile his coworkers to fabricate a staff assault by beating Plaintiff. 20 Such conclusory allegations are insufficient to give rise to a constitutional claim for use of 21 excessive force in violation of the Eighth Amendment. 22 C. Cell Search 23 It is unclear if Plaintiff is challenging his cell search. Although the Fourth Amendment 24 protects against unreasonable searches and seizures, this right has not been extended to searches 25 of prison cells. The Supreme Court has held that “society is not prepared to recognize as 26 legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and 27 that, accordingly, the Fourth Amendment proscription against unreasonable searches does not 1 their individual cells simply cannot be reconciled with the concept of incarceration and the 2 needs and objectives of penal institutions.” Hudson v. Palmer, 468 U.S. 517, 525-26 (1984). 3 Therefore, Plaintiff fails to state a cognizable claim to the extent he complains about cell 4 searches. 5 D. Due Process-Disciplinary Proceedings 6 The Due Process Clause protects prisoners from being deprived of liberty without due 7 process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). In order to state a cause of action 8 for deprivation of procedural due process, a plaintiff must first establish the existence of a liberty 9 interest for which the protection is sought. Liberty interests may arise from the Due Process 10 Clause itself or from state law. Hewitt v. Helms, 459 U.S. 460, 466 (1983). 11 “Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply 12 of rights due a defendant in such proceedings does not apply.” Wolff, 418 U.S. at 556. The 13 minimum procedural requirements that must be met in such proceedings are: (1) written notice of 14 the charges; (2) at least 24 hours between the time the prisoner receives written notice and the 15 time of the hearing, so that the prisoner may prepare his defense; (3) a written statement by the 16 fact finders of the evidence they rely on and reasons for taking disciplinary action; (4) the right 17 of the prisoner to call witnesses in his defense, when permitting him to do so would not be unduly 18 hazardous to institutional safety or correctional goals; and (5) legal assistance to the prisoner 19 where the prisoner is illiterate or the issues presented are legally complex. Id. at 563–71. As long 20 as the five minimum Wolff requirements are met, due process has been satisfied. Walker v. 21 Sumner, 14 F.3d 1415, 1420 (9th Cir. 1994), abrogated on other grounds by Sandin v. Connor, 22 515 U.S. 472 (1995). 23 As stated in the prior screening order, Plaintiff does not allege factual support that his 24 disciplinary action failed to comply with the Wolff elements. Indeed, it appears that Plaintiff was 25 informed of the charges, had time to prepare a defense, and was allowed to present evidence and 26 witnesses. He complains, however, that he did not have all of the evidence he requested. The 27 Court informed Plaintiff in the prior screening order that the Court must be able to discern from 1 evidence or witnesses would not be allowed. The lack of video surveillance evidence does not 2 implicate a due process violation under Wolff. Picart v. Pollard, No. 21-CV-1849 JLS (RBM), 3 2022 WL 395964, at *8 (S.D. Cal. Feb. 9, 2022); see also Brown v. Ives, No. 14-cv-0116-DDP 4 PJW, 2014 WL 3534055, at *2 (C.D. Cal. July 16, 2014) (rejecting argument that prison staff 5 denied inmate a fair hearing by preventing him from seeing a video of the incident because no 6 such video existed). It is unclear whether any such video exists. To the extent Plaintiff complains 7 of not having the best evidence, including witnesses, available, Plaintiff is not entitled to evidence 8 if it will be unduly hazardous to institutional safety or correctional goals. Wolff, 418 U.S. at 9 566 (explaining that witnesses may be denied in order to keep hearing within reasonable limits, 10 as well as “for irrelevance, lack of necessity, or the hazards presented in individual cases”). While 11 allegations that prison officials refused to call a requested witness could potentially state a 12 cognizable claim, see Serrano v. Francis, 345 F.3d 1071, 1079–80 (9th Cir. 2003), the right is not 13 unlimited, see Williams v. Thomas, 492 F. App'x 732, 733 (9th Cir. 2012) (“Prisoners have a 14 limited procedural due process right to call witnesses at disciplinary hearings so long as it will 15 not be unduly hazardous to institutional safety or correctional goals.... Prison officials may be 16 required to explain, in a limited manner, the reason why witnesses were not allowed to testify.”). 17 Hearing officers may also deny a requested witness on grounds other than institutional 18 safety. Wolff, 418 U.S. at 566 (explaining that witnesses may be denied in order to keep hearing 19 within reasonable limits, as well as “for irrelevance, lack of necessity, or the hazards presented in 20 individual cases”). Here, Plaintiff merely states he was denied an opportunity to call witnesses 21 but provides no facts regarding what witnesses he was prevented from calling, why, or what 22 relevant testimony they might have provided. Plaintiff has been unable to cure this deficiency. 23 To the extent that Plaintiff asserts that there was a due process violation simply by being 24 falsely accused of having a cell phone charger, he is not entitled to relief. Hernandez v. Johnston, 25 833 F.2d 1316, 1319 (9th Cir. 1987); see also Hines v. Gomez, 108 F.3d 265, 268–69 (9th Cir. 26 1997) (Ninth Circuit declined to extend the “some evidence” standard to a prison officer's initial 27 1 accusation of a rule violation). Plaintiff does not assert that he was denied any other procedural 2 protections. 3 E. Sexual Assault 4 Individuals in prison have a constitutional right under the Eighth Amendment to be free 5 from sexual harassment or abuse. Wood v. Beauclair, 692 F.3d 1041, 1046 (9th Cir. 2012). To 6 state a cognizable sexual assault claim, a plaintiff must plead facts indicating that “a prison staff 7 member, acting under color of law and without legitimate penological justification, touched [him] 8 in a sexual manner or otherwise engaged in sexual conduct for the staff member's own sexual 9 gratification, or for the purpose of humiliating, degrading or demeaning the prisoner.” Bearchild 10 v. Cobban, 947 F.3d 1130, 1144 (9th Cir. 2020). 11 When evaluating a prisoner’s sexual assault claim against a corrections officer, courts 12 should consider “whether ‘the officials act[ed] with a sufficiently culpable state of mind’ and if 13 the alleged wrongdoing was objectively ‘harmful enough’ to establish a constitutional violation.” 14 Johnson v. Frauenheim, No. 1:18-cv-01477-AWI-BAM (PC), 2021 WL 5236498, *11 (E.D. Cal. 15 Nov. 10, 2021) (findings and recommendations adopted by Johnson v. Frauenheim, 2021 WL 16 5982293 (E.D. Cal. Dec. 17, 2021)) (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). 17 To the extent Plaintiff seeks to raise a claim for sexual assault, such claim fails. Plaintiff 18 contends that during a strip search, officer Rodriguez shoved his finger in Plaintiff’s anal cavity. 19 However, there are no allegations that Rodriguez acted with a Plaintiff alleges no facts showing 20 or insinuating that officer Rodriguez touched Plaintiff in a sexual manner for their own sexual 21 gratification or to humiliate, degrade, or demean Plaintiff. Therefore, Plaintiff fails to state a claim 22 for sexual assault against officer Rodriguez. 23 Further, to the extent plaintiff contends defendants failed to comply with PREA, such claim 24 is unavailing. The PREA, 42 U.S.C. §§ 156011-15609, “authorizes the reporting of incidents of 25 rape in prison, allocation of grants, and creation of a study commission. It does not, however, give 26 rise to a private cause of action.” Porter v. Jennings, No. 1:10-cv-018110AWI-DLB PC, 2012 27 WL 1434986, at *1 (E.D. Cal. Apr. 25, 2012) (collecting cases); D'Agirbaud v. Kim, No. 20- 1 00139 JAI-KJM, 2020 WL 3258408, at *8 (D. Haw. June 16, 2020) (recognizing that there is no 2 private right of action to vindicate violations of the PREA). See also Blessing v. Firestone, 520 3 U.S. 329, 340-41 (1997) (statutory provision gives rise to federal right enforceable 4 under § 1983 where the statute “unambiguously impose[s] a binding obligation on the States” by 5 using “mandatory, rather than precatory, terms”). Because the PREA contains no private right of 6 action, it does not create a right enforceable under § 1983. Thus, to the extent plaintiff attempts 7 to allege his rights under the PREA have been violated, he cannot state a claim for relief. 8 F. Declaratory Judgment 9 Plaintiff’s complaint seeks a declaratory judgment. “A declaratory judgment, like other 10 forms of equitable relief, should be granted only as a matter of judicial discretion, exercised in 11 the public interest.” Eccles v. Peoples Bank of Lakewood Village, 333 U.S. 426, 431 (1948). 12 “Declaratory relief should be denied when it will neither serve a useful purpose in clarifying and 13 settling the legal relations in issue nor terminate the proceedings and afford relief from the 14 uncertainty and controversy faced by the parties.” United States v. Washington, 759 F.2d 1353, 15 1357 (9th Cir. 1985). If this action reaches trial and the jury returns a verdict in favor of Plaintiff, 16 then that verdict will be a finding that Plaintiff’s constitutional rights were violated. Accordingly, 17 a declaration that any Defendant violated Plaintiff’s rights is unnecessary. 18 IV. 19 FAILURE TO OBEY COURT ORDER AND FAILURE TO PROSECUTE 20 Here, the Court screened Plaintiff’s complaint, and on April 7, 2023, an order issued 21 providing Plaintiff with the legal standards that applied to his claims, advising him of the 22 deficiencies that needed to be corrected, and granting him leave to file an amended complaint or 23 notify the Court of intent to proceed on the retaliation claim within thirty days. (ECF No. 11.) 24 Plaintiff did not file an amended complaint or otherwise respond to the Court’s April 7, 2023 25 order. Therefore, on May 18, 2023, the Court ordered Plaintiff to show cause within fourteen 26 (14) days why the action should not be dismissed. (ECF No. 12.) Plaintiff failed to respond to 27 the May 18, 2023 order and the time to do so has passed. 1 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules 2 or with any order of the Court may be grounds for imposition by the Court of any and all sanctions 3 . . . within the inherent power of the Court.” The Court has the inherent power to control its 4 docket and may, in the exercise of that power, impose sanctions where appropriate, including 5 dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000). 6 A court may dismiss an action based on a party’s failure to prosecute an action, failure to 7 obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 52, 8 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 9 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order to file an amended 10 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to 11 comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. 12 United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with 13 court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of 14 prosecution and failure to comply with local rules). 15 “In determining whether to dismiss an action for lack of prosecution, the district court is 16 required to consider several factors: ‘(1) the public’s interest in expeditious resolution of 17 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; 18 (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less 19 drastic sanctions.’ ” Carey, 856 F.2d at 1440 (quoting Henderson, 779 F.2d at 1423). These 20 factors guide a court in deciding what to do, and are not conditions that must be met in order for 21 a court to take action. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 22 1217, 1226 (9th Cir. 2006) (citation omitted). 23 In this instance, the public’s interest in expeditious resolution of the litigation and the 24 Court’s need to manage its docket weigh in favor of dismissal. In re Phenylpropanolamine (PPA) 25 Products Liability Litigation, 460 F.3d at 1226. Plaintiff was ordered to file an amended 26 complaint or notification to proceed only on the retaliation claim within thirty days of April 7, 27 2023 and has not done so. Plaintiff’s failure to comply with the order of the Court by filing an 1 disposition. This action can proceed no further without Plaintiff’s compliance with the order and 2 his failure to comply indicates that Plaintiff does not intend to diligently litigate this action. 3 Since it appears that Plaintiff does not intend to litigate this action diligently there arises 4 a rebuttable presumption of prejudice to the defendants in this action. In re Eisen, 31 F.3d 1447, 5 1452-53 (9th Cir. 1994). The risk of prejudice to the defendants also weighs in favor of dismissal. 6 The public policy in favor of deciding cases on their merits is greatly outweighed by the 7 factors in favor of dismissal. It is Plaintiff’s responsibility to move this action forward. In order 8 for this action to proceed, Plaintiff is required to file an amended complaint curing the deficiencies 9 in the operative pleading. Despite being ordered to do so, Plaintiff did not file an amended 10 complaint or respond to the order to show cause and this action cannot simply remain idle on the 11 Court’s docket, unprosecuted. In this instance, the fourth factor does not outweigh Plaintiff’s 12 failure to comply with the Court’s orders. 13 Finally, a court’s warning to a party that their failure to obey the court’s order will result 14 in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; 15 Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The Court’s April 7, 2023, order 16 requiring Plaintiff to file an amended complaint expressly stated: “Plaintiff is warned that, if he 17 fails to comply with this order, the Court will recommend to the District Judge that this action be 18 dismissed for failure to prosecute and failure to obey a court order.” (ECF No. 11.) In addition, 19 the Court’s May 18, 2023, order to show cause specifically stated: “Plaintiff’s failure to comply 20 with this order will result in a recommendation to dismiss the action for the reasons stated above.” 21 (ECF No. 12.) Thus, Plaintiff had adequate warning that dismissal would result from her 22 noncompliance with the Court’s order. 23 24 V. 25 ORDER AND RECOMMENDATION 26 The Court has screened Plaintiff’s complaint and directed Plaintiff to either file an 27 amended complaint or notify the Court of intent to proceed on the retaliation claim only. Plaintiff 1 | and has not responded to the Court’s order to show why the action should not be dismissed. In 2 |considering the factors to determine if this action should be dismissed, the Court finds that this 3 action should be dismissed for Plaintiff's failure to obey the April 7, 2023 and May 18, 2023 4 orders and failure to prosecute this action. 5 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for 6 | Plaintiffs failure to comply with a court order and failure to prosecute. 7 This Findings and Recommendation is submitted to the district judge assigned to this 8 | action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 9 | (14) days of service of this Recommendation, Plaintiff may file written objections to this findings 10 recommendation with the Court. Such a document should be captioned “Objections to 11 | Magistrate Judge’s Findings and Recommendation.” The district judge will review the magistrate 12 |judge’s Findings and Recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are 13 | advised that failure to file objections within the specified time may result in the waiver of rights 14 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 15 F.2d 1391, 1394 (9th Cir. 1991)). 16 17 IS SO ORDERED. DAM Le 18 Pated: _June 12, 2023 _ Oe 19 UNITED STATES MAGISTRATE JUDGE

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