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7 UNITED STATES DISTRICT COURT

8 EASTERN DISTRICT OF CALIFORNIA

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10 ERIC VALENCIA, Case No. 1:24-cv-01477-EPG (PC)

11 Plaintiff, ORDER TO ASSIGN A DISTRICT JUDGE

12 v. FINDINGS AND RECOMMENDATIONS,

RECOMMENDING THAT THIS ACTION

13 DAVID BALAKIAN, et al., BE DISMISSED, WITHOUT PREJUDICE,

FOR FAILURE TO STATE A CLAIM,

14 Defendants. FAILURE TO PROSECUTE, AND

FAILURE TO COMPLY WITH A COURT

15 ORDER

16 (ECF Nos. 1, 8).

17 OBJECTIONS, IF ANY, DUE WITHIN

THIRTY DAYS

18 19 Plaintiff Eric Valencia is incarcerated at the Madera County Jail and proceeds pro se 20 and in forma pauperis in this civil rights action filed under 42 U.S.C. § 1983. (ECF Nos. 1, 7). 21 The complaint, filed on December 4, 2024, generally alleges that Plaintiff’s defense attorneys 22 have conspired with prosecutors in state court proceedings to do him harm. 23 On February 3, 2025, the Court screened the complaint and concluded that Plaintiff 24 failed to state any cognizable claims. (ECF No. 8). The Court gave Plaintiff thirty days to file 25 an amended complaint or to notify the Court that he wanted to stand on his complaint. (Id. at 26 12). And the Court warned Plaintiff that “[f]ailure to comply with this order may result in the 27 dismissal of this action.” (Id.). 28 The thirty-day deadline has passed, and Plaintiff has not filed an amended complaint or 1 otherwise responded to the Court’s order. Accordingly, for the reasons below, the Court will 2 recommend that Plaintiff’s case be dismissed, without prejudice, for failure to state a claim, 3 failure to prosecute, and failure to comply with a court order. 4 I. SCREENING REQUIREMENT 5 The Court is required to screen complaints brought by prisoners seeking relief against a 6 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 7 The Court must dismiss a complaint, or a portion of it, if the prisoner has raised claims that are 8 frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek 9 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), 10 (2). Additionally, as Plaintiff is proceeding in forma pauperis (ECF No. 7), the Court may 11 screen the complaint under 28 U.S.C. § 1915. “Notwithstanding any filing fee, or any portion 12 thereof, that may have been paid, the court shall dismiss the case at any time if the court 13 determines that the action or appeal fails to state a claim upon which relief may be granted.” 14 28 U.S.C. § 1915(e)(2)(B)(ii). 15 A complaint is required to contain “a short and plain statement of the claim showing 16 that the 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)). A plaintiff must set forth “sufficient 20 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 21 (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting 22 this plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts 23 “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 24 677, 681 (9th Cir. 2009) (citation and internal quotation marks omitted). Additionally, a 25 plaintiff’s legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 26 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 27 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 28 pro se complaints should continue to be liberally construed after Iqbal). 1 II. SUMMARY OF PLAINTIFF’S COMPLAINT 2 Plaintiff’s complaint asserts that he is a “pretrial detainee being held in the Madera Co. 3 Jail.”1 (ECF No. 1, p. 2). He sues four Defendants: (1) David Balakian, a private defense 4 attorney; (2) Craig Collins, a public defender; (3) Rachel Cartier, a district attorney, and (4) 5 Sally Moreno, a district attorney. 6 He brings two claims, both premised on Defendants conspiring to violate his “Federal 7 constitutional rights to due process (14th Amend. U.S. Const.) and right to effective assistance 8 of counsel (6th Amend. U.S. Const.).” Id. at 2-3. 9 For his first claim, he states as follows: 10 Balakian was hired and soon after fired by Plaintiff for providing ineffective assistance and conspiring with Prosecutor Rachel Cartier, then acted on 11 conspiracy, in the secret of an unknown fraudulent defense representation of a cash amount of $74,020.00 out of a 84,020.00 illegally seized by law 12 enforcement during an unwarranted and unreasonable search of Plaintiff’s home. 13 (See Madera Co. Case “People v. 74,020.00 MCV91766). Balakian was never hired to represent or defend the amount seized, nor has Balakian or Cartier 14 provided any notice of the civil proceedings of said case. Balakian and Cartier 15 are parties in People v. 74,020.00 as conspired for the purpose of using said litigation to launder and/or extort stolen money. Additionally, Balakian 16 conspired with prosecution to wrongfully convict Plaintiff as well as persuade Plaintiff into transferring the title of his 2022 BMW 330i over to Balakian. 17 Id. at 3. 18 For his second claim, he states as follows: 19 Collins was court-appointed defense counsel in Plaintiff’s state criminal cases. 20 Collins offered Plaintiff an amplified service for $7,000.00 cash, which Plaintiff paid. Soon after, Collins accepted an illegally imposed pre-trial terms and 21 conditions for an alcohol monitor to be placed on Plaintiff while knowing 22 Plaintiff’s blood alcohol count was within legal limits. Collins accepted the illegally imposed terms and conditions as part of the conspiracy with prosecutor 23 against Plaintiff. These terms and conditions is what prosecution used as the “warranted” force to illegally seize the $84,000.00. 24 Id. 25 Plaintiff seeks $100,000 from each Defendant in what appears to be a request for 26 27 28 1 For readability, minor alterations, like changing capitalization and correcting misspellings, have been made to Plaintiff’s quotations without indicating each change. 1 general damages and $100,000 from each Defendant for punitive damages. 2 III. ANALYSIS OF PLAINTIFF’S COMPLAINT 3 A. Section 1983 4 The Civil Rights Act under which this action was filed provides as follows: 5 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes 6 to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 7 secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 8 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 9 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 10 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see 11 also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los 12 Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 13 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 14 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under 15 color of state law, and (2) the defendant deprived him of rights secured by the Constitution or 16 federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also 17 Marsh v. County of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of 18 state law”). A person deprives another of a constitutional right, “within the meaning of § 1983, 19 ‘if he does an affirmative act, participates in another’s affirmative act, or omits to perform an 20 act which he is legally required to do that causes the deprivation of which complaint is 21 made.’” Preschooler II v. Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) 22 (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection 23 may be established when an official sets in motion a ‘series of acts by others which the actor 24 knows or reasonably should know would cause others to inflict’ constitutional 25 harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of 26 causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.” 27 Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City 28 1 of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 2 A plaintiff must demonstrate that each named defendant personally participated in the 3 deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there must be an actual 4 connection or link between the actions of the defendants and the deprivation alleged to have 5 been suffered by the plaintiff. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 6 691, 695 (1978). 7 B. Younger Abstention 8 As an initial matter, Plaintiff’s claims against his attorneys and the prosecutors in his 9 ongoing state cases cannot proceed in Federal court for the reasons described below. Instead, 10 Plaintiff must raise these issues in his pending state court proceedings. 11 Plaintiff identifies an apparent asset forfeiture case, People v. $74,020 (MCV091766) in 12 the Madera County Superior Court, which appears to be related to his criminal cases, also 13 presumably in the Madera County Superior Court. From the context of the complaint, these 14 cases appear to be ongoing,2 which implicates the Younger abstention doctrine. 15 The Younger abstention is rooted in the “desire to permit state courts to try state cases 16 free from interference by federal courts.” Younger v. Harris, 401 U.S. 37, 43 (1971). Thus, 17 “[a]bsent extraordinary circumstances, interests of comity and federalism instruct federal courts 18 to abstain from exercising our jurisdiction in certain circumstances when asked to enjoin 19 ongoing state enforcement proceedings.” Page v. King, 932 F.3d 898, 901 (9th Cir. 2019) 20 (alterations, citation, and internal quotation marks omitted). 21 Younger abstention is appropriate when: (1) there is an ongoing state judicial proceeding; (2) the proceeding implicates important state interests; (3) there is 22 an adequate opportunity in the state proceedings to raise constitutional challenges; and (4) the requested relief seeks to enjoin or has the practical effect 23 of enjoining the ongoing state judicial proceeding. 24 25 26 27 2 Among other things, Plaintiff states that he is a pretrial detainee, indicating he has not been convicted of a crime; he mentions Collins improperly accepting pretrial terms and conditions, which indicates that 28 his criminal case (or cases) is still in an early stage; and he does not state that any of these cases have concluded. 1 Arevalo v. Hennessy, 882 F.3d 763, 765 (9th Cir. 2018) (alterations, citation, and internal 2 quotation marks omitted). 3 Typically, dismissal is required for Younger abstention. Aiona v. Judiciary of State of 4 Hawaii, 17 F.3d 1244, 1248 (9th Cir. 1994) (holding that, when abstaining under Younger, “a 5 district court must dismiss the federal action . . . [and] there is no discretion to grant injunctive 6 relief”) (citation and internal quotation marks omitted). But “federal courts should not dismiss 7 actions where damages are at issue; rather, damages actions should be stayed until the state 8 proceedings are completed.” Gilbertson v. Albright, 381 F.3d 965, 968 (9th Cir. 2004). Lastly, 9 “Federal courts will not abstain under Younger in extraordinary circumstances where 10 irreparable injury can be shown.” Page, 932 F.3d at 902 (citation and internal quotation marks 11 omitted). “[B]ad faith and harassment” are “the usual prerequisites” to show “the necessary 12 irreparable injury.” Younger, 401 U.S. at 53. 13 Consideration of the above legal standards warrants applying the Younger abstention 14 doctrine here. First, Plaintiff’s complaint indicates that there are ongoing state court 15 proceedings, with Plaintiff alleging that Defendants are conspiring to cause him harm in such 16 cases. See Mason v. Mercy Med. Ctr., No. 2:11-CV-1309-CMK-P, 2012 WL 2457836, at *2 17 (E.D. Cal. June 26, 2012) (“Plaintiff essentially claims defendants conspired to subject him to a 18 warrantless search and seizure in violation of the Fourth Amendment. Because plaintiff is now 19 incarcerated, it is reasonable to infer that plaintiff is incarcerated as a result of a criminal 20 prosecution relating to evidence discovered by the body cavity search. If a criminal case is still 21 ongoing in any stage, Younger abstention would be implicated . . . .”).3 22

23 3 Even if Plaintiff’s criminal cases have concluded and he has been convicted, he would still be barred 24 from proceeding on his claims concerning his wrongful conviction, unless and until he shows that his conviction has been invalidated. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (concluding that, 25 to recover damages for “harm caused by actions whose unlawfulness would render a conviction or sentence invalid,” a § 1983 plaintiff must prove that the conviction or sentence was reversed, expunged, 26 or otherwise invalidated). Notably, “a state prisoner’s § 1983 action is barred (absent prior 27 invalidation)—no matter the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit (state conduct leading to conviction or internal prison proceedings)—if success in that 28 action would necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005). 1 Second, the criminal cases, and related asset forfeiture case, implicate important state 2 interests. See Kelly v. Robinson, 479 U.S. 36, 49 (1986) (“This Court has recognized that the 3 States’ interest in administering their criminal justice systems free from federal interference is 4 one of the most powerful of the considerations that should influence a court considering 5 equitable types of relief.”); Ames v. Rogers, No. 2:11-CV-1268 KJM JFM, 2011 WL 5436330, 6 at *2 (E.D. Cal. Nov. 8, 2011) (“State forfeiture proceedings implicate important state 7 interests.”). 8 Third, Plaintiff’s state court proceedings afford him the opportunity to raise his 9 challenges in state court. See Peterson v. Contra Costa Cnty. Superior Ct., No. C03-5534 10 MMC (PR), 2004 WL 443457, at *1 (N.D. Cal. Mar. 2, 2004) (“Plaintiff will be afforded an 11 adequate opportunity to raise his constitutional claims in his criminal trial and on appeal in the 12 California courts.”); Ames, 2011 WL 5436330, at *2 (“[S]tate forfeiture proceedings provide an 13 opportunity to litigate federal claims.”). 14 Fourth, Plaintiff ultimately seeks a finding that his attorneys and the prosecution are 15 conspiring to harm him in his state court proceedings, which finding would have the practical 16 effect of enjoining, or interfering, with the state court proceedings. See Jennings v. Leach, No. 17 EDCV 21-00209 JVS (PVC), 2021 WL 12140262, at *2 (C.D. Cal. Mar. 9, 2021) 18 (“Furthermore, a finding in favor of Plaintiff on his claims, including, but not limited to, his 19 false arrest claim, would have the practical effect of enjoining the ongoing state judicial 20 proceeding.) (internal quotation marks omitted). 21 Lastly, there are no extraordinary circumstances indicating that Plaintiff will face 22 irreparable injury unless this Court intervenes. As discussed below, while Plaintiff asserts that 23 there is a conspiracy to cause him harm in his state court proceedings, he provides no 24 developed allegations to support such claims. 25 C. Conspiracy Claims 26 Although Plaintiff may not proceed with his § 1983 claims for the reasons discussed 27 above, there are other legal bars present. Notably, the complaint fails to allege that his attorneys 28 acted under color of state law, and the prosecutors are entitled to prosecutorial immunity. 1 1. Color of state law requirement 2 As noted above, the text of § 1983 requires that a defendant act under color of law. 3 Thus, “[t]o state a section 1983 claim, a plaintiff must allege facts which show a deprivation of 4 a right, privilege or immunity secured by the Constitution or federal law by a person acting 5 under color of state law.” Lopez v. Dep’t of Health Servs., 939 F.2d 881, 883 (9th Cir. 1991) 6 (emphasis added); Davis v. John, 485 F. Supp. 3d 1207, 1216 (C.D. Cal. 2020) (“It is axiomatic 7 that a plaintiff asserting a section 1983 claim must allege that the defendant acted under color 8 of state law when performing the challenged acts.”). 9 Generally, neither a public defender (such as Defendant Collins) nor a private attorney 10 (such as Defendant Balakian) act under color of law when performing legal services. Polk Cnty. 11 v. Dodson, 454 U.S. 312, 325 (1981) (“[A] public defender does not act under color of state law 12 when performing a lawyer’s traditional functions as counsel to a defendant in a criminal 13 proceeding.”); Campbell v. Geragos, No. 1:10-CV-02231-LJO-GBC (PC), 2010 WL 5244677, 14 at *1 (E.D. Cal. Dec. 9, 2010), report and recommendation adopted, 2011 WL 300159 (E.D. 15 Cal. Jan. 27, 2011) (concluding that allegations against private attorneys did not implicate 16 color-of-law requirement). 17 However, there is a limited exception. The Supreme Court has “held that an otherwise 18 private person acts under color of state law when engaged in a conspiracy with state officials to 19 deprive another of federal rights” and thus allegations that public defenders conspired with 20 state officials to secure a criminal conviction were adequate to allege that they acted under 21 color of law. Tower v. Glover, 467 U.S. 914, 920 (1984) (internal citation and quotation marks 22 omitted). 23 While Plaintiff repeatedly states that his attorneys conspired with prosecutors to do him 24 harm in state court cases, his allegations are lacking. 25 To state a conspiracy claim, a plaintiff must allege “(1) the existence of an express or 26 implied agreement among the defendant . . . to deprive him of his constitutional rights, and (2) 27 an actual deprivation of those rights resulting from that agreement.” Ting v. United States, 927 28 F.2d 1504, 1512 (9th Cir. 1991); United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1 1539, 1540–41 (9th Cir. 1989) (“To prove a conspiracy between the state and private parties 2 under section 1983, [a plaintiff] must show an agreement or meeting of the minds’ to violate 3 constitutional rights”; further, “each participant in the conspiracy need not know the exact 4 details of the plan, but each participant must at least share the common objective of the 5 conspiracy.”) (internal citation and quotation marks omitted). “[C]onclusory allegations” are 6 insufficient to support a conspiracy claim; rather, “[t]o state a claim for a conspiracy to violate 7 one’s constitutional rights under section 1983, the plaintiff must state specific facts to support 8 the existence of the claimed conspiracy.” Burns v. Cnty. of King, 883 F.2d 819, 821 (9th Cir. 9 1989). 10 Plaintiff offers no specific facts here to show a conspiracy between his attorneys and the 11 prosecutors. Although he repeatedly asserts that a conspiracy existed—e.g., Balkian 12 “conspire[ed] with Prosecutor Rachel Cartier” and Collins was part of “conspiracy with 13 prosecutor”—he does not provide the who, what, where, and when type facts to show any 14 agreement between Defendants. See Lacey v. Maricopa Cnty., 693 F.3d 896, 937 (9th Cir. 15 2012) (“The conclusory conspiracy allegations in the original complaint do not define the scope 16 of any conspiracy involving Thomas, what role he had, or when or how the conspiracy 17 operated.”). For example, he does not explain the nature of any agreement between Balakian 18 and Cartier to “launder” or “extort stolen money” in what appears to be an asset forfeiture case, 19 nor does he give a basis to conclude that Collins conspired with the prosecution to require an 20 “alcohol monitor” condition in his criminal cases. 21 Accordingly, his allegations are insufficient to state any conspiracy claim, which 22 likewise means that there is no basis to conclude that his attorneys were state actors. Brown v. 23 Duran, No. CIV S-11-0930 WBS, 2011 WL 4088697, at *2 (E.D. Cal. Sept. 13, 2011) 24 (“Plaintiff’s vague allegation that a state court judge he names ‘either conspired with my public 25 defender or conspired to cover up his actions....’ (SAC, p. 6), however, simply does not make a 26 colorable showing of the requisite conspiracy that would serve to transmute the defendants into 27 state actors who may be sued under § 1983.”). Rather than any conspiracy, Plaintiff’s 28 allegations more closely indicate that he is simply dissatisfied with the quality of his attorneys’ 1 performances in his state court cases. However, “allegations of general, legal malpractice fail to 2 state a cognizable claim under § 1983 and must be dismissed.” Peterson v. Petty, No. CIV S- 3 10-2193-JAM-DAD(P), 2010 WL 3505095, at *2 (E.D. Cal. Sept. 3, 2010). 4 2. Prosecutorial immunity 5 Because Plaintiff is attempting to sue prosecutors (Defendant Cartier and Defendant 6 Moreno), the Court also addresses prosecutorial immunity. The Ninth Circuit explained this 7 immunity as follows: 8 Absolute immunity is generally accorded to judges and prosecutors functioning in their official capacities. Stump v. Sparkman, 435 U.S. 349, 364, 98 S.Ct. 9 1099, 55 L.Ed.2d 331 (1978) (holding that state circuit judge is immune from suit for all actions within his jurisdiction); Imbler v. Pachtman, 424 U.S. 409, 10 430–31, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (holding that state prosecutor had 11 absolute immunity for initiation and pursuit of criminal prosecutions, including presentation of case at trial). This immunity reflects the long-standing “general 12 principle of the highest importance to the proper administration of justice that a 13 judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to 14 himself.” Bradley v. Fisher, 13 Wall. 335, 347, 20 L.Ed. 646 (1871).

15 Recognizing these considerations, courts have extended the protections of 16 absolute immunity to qualifying state officials sued under 42 U.S.C. § 1983. Miller v. Gammie, 335 F.3d 889, 895-96 (9th Cir.2003) (explaining that though 17 § 1983 does not include a defense of immunity, “the Supreme Court has recognized that when Congress enacted § 1983, it was aware of a well- 18 established and well-understood common-law tradition that extended absolute 19 immunity to individuals performing functions necessary to the judicial process” (citing Forrester v. White, 484 U.S. 219, 225–26 (1988) (superseded by 20 statute))); Buckley v. Fitzsimmons, 509 U.S. 259, 268–69, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). Indeed, judicial immunity from § 1983 suits is “viewed as 21 necessary to protect the judicial process.” Burns v. Reed, 500 U.S. 478, 485, 111 22 S.Ct. 1934, 114 L.Ed.2d 547 (1991). Likewise, the protections of absolute immunity accorded prosecutors reflect the “‘concern that harassment by 23 unfounded litigation would cause a deflection of the prosecutor’s energies from his public duties, and the possibility that he would shade his decisions instead of 24 exercising the independence of judgment required by his public trust.’” Id. 25 (quoting Imbler, 424 U.S. at 423, 96 S.Ct. 984). 26 Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 922-923 (9th Cir. 2004); see also Broam v. 27 Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003) (“A state prosecutor is entitled to absolute 28 immunity from liability under § 1983 for violating a person’s federal constitutional rights when 1 he or she engages in activities intimately associated with the judicial phase of the criminal 2 process.”) (citation and internal quotation marks omitted). 3 Here, Plaintiff alleges that Cartier and Moreno have taken actions, in their capacity as 4 prosecutors, to harm him in his state court cases, including attempts to wrongfully convict him 5 of crimes. But based on the legal standards above, there are entitled to prosecutorial immunity. 6 See Milstein v. Cooley, 257 F.3d 1004, 1008 (9th Cir. 2001) (noting that prosecutorial 7 “immunity covers the knowing use of false testimony at trial, the suppression of exculpatory 8 evidence, and malicious prosecution”); Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) 9 (“We therefore hold that a conspiracy between judge and prosecutor to predetermine the 10 outcome of a judicial proceeding, while clearly improper, nevertheless does not pierce the 11 immunity extended to judges and prosecutors.”). 12 IV. FAILURE TO PROSECUTE AND COMPLY WITH COURT ORDERS 13 The Court will likewise recommend dismissal based on Plaintiff’s failure to prosecute 14 this case and to comply with the Court’s screening order. 15 In determining whether to dismiss a[n] [action] for failure to prosecute or failure to comply with a court order, the Court must weigh the following factors: (1) the 16 public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the 17 availability of less drastic alternatives; and (5) the public policy favoring 18 disposition of cases on their merits. 19 Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 20 1258, 1260-61 (9th Cir. 1992)). 21 “‘The public’s interest in expeditious resolution of litigation always favors dismissal.’” 22 Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Therefore, the 23 first factor weighs in favor of dismissal. 24 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 25 determine whether the delay in a particular case interferes with docket management and the 26 public interest. . . . It is incumbent upon the Court to manage its docket without being subject to 27 routine noncompliance of litigants. . . .” Id. (citations omitted). Plaintiff has failed to respond to 28 the Court’s screening order. This failure to respond is delaying the case and interfering with 1 docket management. Therefore, the second factor weighs in favor of dismissal. 2 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 3 and of itself to warrant dismissal.” Id. (citing Yourish, 191 F.3d at 991). However, “delay 4 inherently increases the risk that witnesses’ memories will fade and evidence will become 5 stale,” id. at 643, and it is Plaintiff’s failure to comply with a court order and to prosecute this 6 case that is causing delay. Therefore, the third factor weighs in favor of dismissal. 7 As for the availability of lesser sanctions, given that Plaintiff has chosen not to 8 prosecute this action and has failed to comply with the Court’s order, despite being warned of 9 possible dismissal, there is little available to the Court which would constitute a satisfactory 10 lesser sanction while protecting the Court from further unnecessary expenditure of its scarce 11 resources. Considering Plaintiff’s in forma pauperis status, it appears that monetary sanctions 12 are of little use to prompt him to comply with future orders. And given the stage of these 13 proceedings, the preclusion of evidence or witnesses is not available. Lastly, because the 14 dismissal being recommended in this case is without prejudice, the Court is stopping short of 15 using the harshest possible sanction of dismissal with prejudice. Therefore, the fourth factor 16 weighs in favor of dismissal. 17 Finally, because public policy favors disposition on the merits, this final factor weighs 18 against dismissal. Id. 19 After weighing the factors, the Court finds that dismissal is appropriate. 20 V. CONCLUSION, ORDER, AND RECOMMENDATIONS 21 Accordingly, IT IS ORDERED that the Clerk of Court is respectfully directed to assign 22 a District Judge to this case. 23 And based on the forgoing, IT IS RECOMMENDED as follows: 24 1. This action be dismissed, without prejudice, for failure to state a claim, failure to 25 prosecute, and failure to comply with a court order; and 26 2. The Clerk of Court be directed to close this case. 27 These findings and recommendations are submitted to the United States District Judge 28 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty 1 || (30) days after being served with these findings and recommendations, Plaintiff may file 2 || written objections with the Court. Such a document should be captioned “Objections to 3 || Magistrate Judge’s Findings and Recommendations.” Any objections shall be limited to no 4 || more than fifteen (15) pages, including exhibits. Plaintiff is advised that failure to file 5 || objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 6 || Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 7 || 9th Cir. 1991)). 8 IT IS SO ORDERED. 9 10 |[ Dated: _Mareh 21, 2025 _ ___ [sf Fey

UNITED STATES MAGISTRATE JUDGE

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