1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LEANARD COBBS JR., Case No.: 1:23-cv-00360-CDB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS

TO DISMISS THIS ACTION FOR

13 v. PLAINTIFF’S FAILURE TO OBEY

COURT ORDERS AND FAILURE TO

14 KERN COUNTY, et al., PROSECUTE

15 Defendants. 14-DAY OBJECTION DEADLINE

16 Clerk of the Court to Assign District Judge

17

18 Plaintiff Leanard Cobbs Jr. is proceeding pro se and in forma pauperis in this civil rights 19 action pursuant to 42 U.S.C. section 1983. 20 I. INTRODUCTION 21 On November 5, 2024, the Court issued its First Screening Order. (Doc. 10.) It determined 22 Plaintiff failed to state a claim upon which relief could be granted. (Id. at 6-13.) As a result, 23 Plaintiff was directed to file, within 21 days of the date of service of the order, either a first 24 amended complaint curing the deficiencies identified in the screening order, or a notice of 25 voluntary dismissal. (Id. at 14.) 26 More than 21 days have passed, and Plaintiff has failed to comply with the Court’s 27 screening order. 1 II. DISCUSSION 2 Applicable Legal Standards 3 The Local Rules, corresponding with Federal Rule of Civil Procedure 11, provide, 4 “[f]ailure of counsel or of a party to comply with these Rules or with any order of the Court may 5 be grounds for the imposition by the Court of any and all sanctions authorized by statute or Rule 6 or within the inherent power of the Court.” Local Rule 110. “District courts have inherent power 7 to control their dockets” and, in exercising that power, may impose sanctions, including dismissal 8 of an action. Thompson v. Housing Auth., City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). 9 A court may dismiss an action based on a party’s failure to prosecute an action, obey a court 10 order, or comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 11 1992) (dismissal for failure to comply with a court order to amend a complaint); Malone v. U.S. 12 Postal Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to comply with a court 13 order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to 14 prosecute and to comply with local rules). 15 “In determining whether to dismiss an action for lack of prosecution, the district court is 16 required to weigh several factors: (1) the public’s interest in expeditious resolution of litigation; 17 (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 18 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 19 sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (internal quotation marks & 20 citation omitted). These factors guide a court in deciding what to do and are not conditions that 21 must be met in order for a court to take action. In re Phenylpropanolamine (PPA) Products 22 Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (citation omitted). 23 Analysis 24 Here, Plaintiff has failed to file a first amended complaint, a notice of voluntary dismissal, 25 or any other pleading following this Court’s issuance of its screening order requiring a response. 26 Given the Court’s inability to communicate with Plaintiff, there are no other reasonable 27 alternatives available to address Plaintiff’s failure to obey orders and failure to prosecute this 1 Court’s need to manage its docket — weigh in favor of dismissal. Carey, 856 F.2d at 1440. 2 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal since a 3 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 4 See Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). Here, the screening order directed 5 Plaintiff to file either a first amended complaint curing the deficiencies identified in the order, or 6 to file a notice of voluntary dismissal, within 21 days. Plaintiff has taken no action whatsoever. 7 Because Plaintiff has failed to comply with the screening order, his inaction amounts to an 8 unreasonable delay in prosecuting this case resulting in a presumption of injury. Thus, the third 9 factor — a risk of prejudice to the defendants — also weighs in favor of dismissal. Carey, 856 10 F.2d at 1440. 11 The fourth factor usually weighs against dismissal because public policy favors 12 disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, 13 “this factor lends little support to a party whose responsibility it is to move a case toward 14 disposition on the merits but whose conduct impedes progress in that direction.” In re PPA, 460 15 F.3d at 1228. Plaintiff has not moved this case forward toward disposition on the merits. He has 16 failed to comply with the screening order and has stopped communicating with the Court. 17 Therefore, the fourth factor — the public policy favoring disposition of cases on their merits — 18 also weighs in favor of dismissal. Carey, 856 F.2d at 1440. 19 Finally, the Court’s warning to a party that failure to obey the court’s orders or rules will 20 result in dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d 21 at 1262. Here, the First Screening Order issued November 5, 2024, expressly warned: “If 22 Plaintiff fails to comply with this order, the Court will recommend that this action be 23 dismissed, without prejudice, for failure to obey court order and for failure to prosecute.” 24 (Doc. 10 at 10, emphasis in original.) Further, in the First Informational Order in Prisoner/Civil 25 Detainee Civil Rights Case issued March 10, 2023, Plaintiff was advised as follows: “In litigating 26 this action, the parties must comply with this Order, the Federal Rules of Civil Procedure (“Fed. 27 R. Civ. P.”), and the Local Rules of the United States District Court, Eastern District of California 1 of sanctions which may include dismissal of the case. Local Rule 110; Fed. R. Civ. P. 41(b).” 2 (See Doc. 2 at 1.) That same order advised Plaintiff that “all Court deadlines are strictly 3 enforced.” (Id. at 5.) Thus, the undersigned finds Plaintiff had adequate warning that dismissal 4 could result from his noncompliance with this Court’s orders. Thus, the fifth factor — the 5 availability of less drastic sanctions —weighs in favor of dismissal. Ferdik, 963 F.2d at 1262; 6 Carey, 856 F.2d at 1440. 7 In sum, Plaintiff has failed to comply with this Court’s orders, and in doing so, has failed 8 to prosecute this action. It is Plaintiff’s responsibility to comply with Court orders and to 9 prosecute this action. 10 III. CONCLUSION, ORDER AND RECOMMENDATIONS 11 Accordingly, the Court DIRECTS the Clerk of the Court to assign a district judge to this 12 action. 13 Further, the Court RECOMMENDS that this action be dismissed, with prejudice, based on 14 Plaintiff’s failure to obey Court orders and to prosecute this action. 15 These Findings and Recommendations will be submitted to the United States District 16 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 17 after being served with a copy of these Findings and Recommendations, a party may file written 18 objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to 19 Magistrate Judge’s Findings and Recommendations” and shall not exceed 15 pages without 20 leave of Court and good cause shown. The Court will not consider exhibits attached to the 21 Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference the 22 exhibit in the record by its CM/ECF document and page number, when possible, or otherwise 23 reference the exhibit with specificity. Any pages filed in excess of the fifteen 15- page limitation 24 may be disregarded by the District Judge when reviewing these Findings and Recommendations 25 under 28 U.S.C. § 636(b)(l)(C). 26 // 27 // 1 A party’s failure to file any objections within the specified time may result in the waiver 2 | of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 3 | IT IS SO ORDERED. ‘ Dated: _ December 4, 2024 | ) Ww Me D RY 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28