1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JASON SCOTT HOUNIHAN, Case No. 1:24-cv-00198-BAM (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO

RANDOMLY ASSIGN DISTRICT JUDGE TO

13 v. ACTION 14 SHIRK, FINDINGS AND RECOMMENDATIONS TO

DISMISS ACTION, WITH PREJUDICE, FOR

15 Defendant. FAILURE TO STATE A CLAIM, FAILURE

TO OBEY COURT ORDER, AND FAILURE

16 TO PROSECUTE 17 (ECF No. 7) 18 FOURTEEN (14) DAY DEADLINE 19 20 I. Background 21 Plaintiff Jason Scott Hounihan (“Plaintiff”) is a former county jail inmate proceeding pro 22 se and in forma pauperis in this civil rights action under 42 U.S.C. § 1983. 23 On August 16, 2024, the Court screened the complaint and found that it failed to comply 24 with Federal Rule of Civil Procedure 8 and failed to state a cognizable claim for relief. (ECF No. 25 7.) The Court issued a screening order granting Plaintiff leave to file a first amended complaint 26 or a notice of voluntary dismissal within thirty (30) days. (Id.) The Court expressly warned 27 Plaintiff that the failure to comply with the Court’s order would result in a recommendation for 28 dismissal of this action, with prejudice. (Id. at 5.) Plaintiff failed to file an amended complaint or 1 otherwise communicate with the Court, and the deadline to do so has expired. 2 II. Failure to State a Claim 3 A. Screening Requirement 4 The Court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity and/or against an officer or employee of a governmental entity. 28 U.S.C. 6 § 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous 7 or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary 8 relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(b). 9 A complaint must contain “a short and plain statement of the claim showing that the 10 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 11 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 12 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 13 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as 14 true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 15 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 16 To survive screening, Plaintiff’s claims must be facially plausible, which requires 17 sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable 18 for the misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret 19 Serv., 572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully 20 is not sufficient, and mere consistency with liability falls short of satisfying the plausibility 21 standard. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969. 22 B. Plaintiff’s Allegations 23 It appears that Plaintiff is no longer in custody. The events in the complaint allegedly 24 arose while Plaintiff was housed at the Bob Wiley Detention Center in Visalia, California. 25 Plaintiff names Judge Shirk, Judge at Superior Court Visalia, Tulare County, as the sole 26 defendant. Plaintiff alleges as follows:

27 Case No. 378259 VCF in my 2021 appeal on this case had violations of my due process rights, that were reversed and never corrected. Now my due process 28 rights have been violated again at my preliminary hearing by Judge Shirk asked 1 on the record for an expert to testify as to the alleged substance which was a due process right in my 14th Amendment that was clearly violated with deliberate 2 indifference. Once again, which is unjust. (as well as my 6th Amendment rights blatently violated). 3 4 (ECF No. 1, p. 3 (unedited text).) 5 As remedies, Plaintiff wants Case No. 434911 dismissed and the restitution from Case No. 6 378259 dismissed and the reversed crimes to be off his record. Plaintiff also seeks compensatory 7 and punitive damages. 8 C. Discussion 9 Plaintiff’s complaint fails to comply with Federal Rule of Civil Procedure 8 and fails to 10 state a cognizable claim under 42 U.S.C. § 1983. 11 1. Federal Rule of Civil Procedure 8 12 Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and plain 13 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a). 14 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause 15 of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 16 (citation omitted). Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a 17 claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. 18 at 555). While factual allegations are accepted as true, legal conclusions are not. Id.; see also 19 Twombly, 550 U.S. at 556–57. 20 Although Plaintiff's complaint is short, it is not a plain statement of his claims. As a basic 21 matter, the complaint does not clearly state what happened, when it happened or who was 22 involved. 23 2. Linkage Requirement 24 The Civil Rights Act under which this action was filed provides:

25 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 26 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. 27 28 42 U.S.C. § 1983. The statute plainly requires that there be an actual connection or link between 1 the actions of the defendants and the deprivation alleged to have been suffered by Plaintiff. See 2 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). The 3 Ninth Circuit has held that “[a] person ‘subjects’ another to the deprivation of a constitutional 4 right, within the meaning of section 1983, if he does an affirmative act, participates in another’s 5 affirmative acts or omits to perform an act which he is legally required to do that causes the 6 deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 7 Here, Plaintiff has identified one defendant, but it is unclear what defendant did or did not 8 do that resulted in a violation of his constitutional rights. Plaintiff is cautioned that a judge has 9 absolute immunity from suit, as described below. 10 3. Judicial Immunity 11 To the extent Plaintiff is attempting to bring suit against the state superior court judge 12 based on judicial rulings, he may not do so. Absolute immunity is generally accorded to judges 13 functioning in their official capacities. See Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 14 (9th Cir.2004). “Few doctrines were more solidly established at common law than the immunity 15 of judges from liability for damages for acts committed within their judicial jurisdiction.” 16 Pierson v. Ray, 386 U.S. 547, 553–54 (1967). Judicial immunity “is an immunity from suit, not 17 just from the ultimate assessment of damages.” Mireles v. Waco, 502 U.S. 9, 11 (1991); see also 18 Stump v. Sparkman, 435 U.S. 349, 356 (1978) (“A judge will not be deprived of immunity 19 because the action he took was in error, was done maliciously, or was in excess of his 20 authority.”). Accordingly, Plaintiff’s claims against the state superior court judge arising from 21 alleged violation of Sixth and Fourteenth Amendments are not cognizable. 22 4. Habeas Corpus 23 To the extent Plaintiff is attempting to challenge the legality of his custody, he may not do 24 so in a Section 1983 proceeding. When a prisoner is challenging the legality or duration of his 25 custody, and the relief he seeks is immediate or speedier release, his sole federal remedy is habeas 26 corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Further, relief under § 1983 for an 27 allegedly unconstitutional conviction or imprisonment does not accrue until the conviction or 28 sentence has been invalidated. Heck v. Humphrey, 512 U.S. 477, 489–90 (1994). 1 III. Failure to Prosecute and Failure to Obey a Court Order 2 A. Legal Standard 3 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 4 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 5 within the inherent power of the Court.” District courts have the inherent power to control their 6 dockets and “[i]n the exercise of that power they may impose sanctions including, where 7 appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 8 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 9 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 10 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 11 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 12 amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) 13 (dismissal for failure to comply with court order). 14 In determining whether to dismiss an action, the Court must consider several factors: 15 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 16 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 17 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 18 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 19 B. Discussion 20 Here, Plaintiff’s first amended complaint is overdue, and he has failed to comply with the 21 Court’s order. The Court cannot effectively manage its docket if Plaintiff ceases litigating his 22 case. Thus, the Court finds that both the first and second factors weigh in favor of dismissal. 23 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a 24 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 25 Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against 26 dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 27 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose 28 responsibility it is to move a case toward disposition on the merits but whose conduct impedes 1 progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Products 2 Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted). 3 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 4 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 5 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s August 16, 2024 screening 6 order expressly warned Plaintiff that his failure to file an amended complaint would result in a 7 recommendation of dismissal of this action, with prejudice, for failure to obey a court order and 8 for failure to state a claim. (ECF No. 7, p. 5.) Thus, Plaintiff had adequate warning that dismissal 9 could result from his noncompliance. 10 Additionally, at this stage in the proceedings there is little available to the Court that 11 would constitute a satisfactory lesser sanction while protecting the Court from further 12 unnecessary expenditure of its scarce resources. As Plaintiff is proceeding in forma pauperis in 13 this action, it appears that monetary sanctions will be of little use and the preclusion of evidence 14 or witnesses is likely to have no effect given that Plaintiff has ceased litigating his case. 15 IV. Conclusion and Recommendation 16 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a 17 District Judge to this action. 18 Furthermore, the Court finds that dismissal is the appropriate sanction and HEREBY 19 RECOMMENDS that this action be dismissed, with prejudice, for failure to state a claim 20 pursuant to 28 U.S.C. § 1915A, for failure to obey a court order, and for Plaintiff’s failure to 21 prosecute this action. 22 These Findings and Recommendation will be submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 24 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 25 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 26 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 27 /// 28 /// 1 specified time may result in the waiver of the “right to challenge the magistrate’s factual 2 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 3 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4

IT IS SO ORDERED.

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6 Dated: October 1, 2024 /s/ Barbara A. McAuliffe _

UNITED STATES MAGISTRATE JUDGE

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