I. BACKGROUND AND SUMMARY

19 On August 22, 2022, plaintiff Donald L. Booker, who is in state custody, is 20 proceeding pro se, and has been granted leave to proceed without prepayment of the 21 full filing fee (“IFP”), filed a “Complaint for Violation of Civil Rights (Prisoner 22 Complaint)” with attachments (“Complaint”) pursuant to 42 U.S.C. § 1983 23 (“Section 1983”), seeking to have this Court “recall” plaintiff’s conviction/sentence 24 in Los Angeles Superior Court Case No. GA099455-01 as “legally invalid.”1 25 26 27 1Plaintiff concurrently filed a Petition for Writ of Habeas Corpus by a Person in State 28 Custody pursuant to 28 U.S.C. § 2254 with this Court in Booker v. Koury, Case No. 2:22-cv- 06053-SPG-JC, which is pending. 1 As plaintiff is a state prisoner and is proceeding IFP, the assigned Magistrate 2 Judge screened the Complaint to determine if the action is frivolous or malicious, 3 fails to state a claim on which relief may be granted, or seeks monetary relief 4 against a defendant who is immune from such relief. See 28 U.S.C. 5 §§ 1915(e)(2)(B), 1915A; 42 U.S.C. § 1997e(c). 6 On October 31, 2022, the Magistrate Judge issued an Order Dismissing 7 Complaint with Leave to Amend and Directing Plaintiff to Respond to Order 8 (“October Order”).2 The October Order advised plaintiff that the Complaint was 9 deficient for reasons described in the October Order, dismissed the Complaint with 10 leave to amend, and directed plaintiff, within twenty days (i.e., by November 21, 11 2022), to file one of the following: (1) a first amended complaint which cures the 12 pleading defects described in the October Order; (1) a notice of dismissal; or (3) a 13 14 15 2Absent consent by all parties, including unserved defendants, a magistrate judge cannot issue dispositive orders, including an order dismissing a claim. Branch v. Umphenour, 936 F.3d 16 994, 1004 (9th Cir. 2019); see also Williams v. King, 875 F.3d 500, 504 (9th Cir. 2017) (“[C]onsent of all parties (including unserved defendants) is a prerequisite to a magistrate 17 judge’s jurisdiction to enter dispositive decisions under § 636(c)(1).”); 28 U.S.C. 18 § 636(b)(1)(A)-(B). However, “the dismissal of a complaint with leave to amend is a non-dispositive matter.” McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). Accordingly, a 19 magistrate judge may dismiss a complaint with leave to amend without the approval of a district 20 judge. See id. at 797. Additionally, a plaintiff who disagrees with a magistrate judge’s order, including a nondispositive order dismissing a pleading with leave to amend, may file an 21 objection with the district judge. See Bastidas v. Chappell, 791 F.3d 1155, 1162 (9th Cir. 2015); see also Hunt v. Pliler, 384 F.3d 1118, 1124 (9th Cir. 2004) (“District court review of even these 22 nondispositive matters . . . can be compelled upon objection of the party against whom the 23 magistrate has ruled.”) (quoting McKeever, 932 F.2d at 798). The October Order expressly notified plaintiff that (1) the October Order constituted non-dispositive rulings on pretrial 24 matters; (2) to the extent a party disagreed with such non-dispositive rulings, such party may seek review from the District Judge within fourteen (14) days; (3) to the extent a party believed 25 that the rulings were dispositive, rather than non-dispositive, such party had the right to object to 26 the determination that the rulings were non-dispositive within fourteen (14) days; and (4) a party would be foreclosed from challenging the rulings in the October Order if such party did not seek 27 review thereof or object thereto. (October Order at 10 n.4). 28 2 1 notice of intent to stand on the Complaint.3 The October Order expressly cautioned 2 plaintiff that the failure timely to file a first amended complaint, a notice of 3 dismissal, or a notice of intent to stand on the Complaint may be deemed plaintiff’s 4 admission that amendment is futile and may result in the dismissal of this action on 5 the grounds set forth in the October Order, on the ground that amendment is futile, 6 for failure diligently to prosecute, and/or for failure to comply with the October 7 Order. 8 The November 21, 2022 deadline to comply with the October Order expired 9 without any action by plaintiff. Plaintiff has not sought an extension of time to 10 comply with the October Order, has not sought review of, or filed any objection to 11 the October Order, and – aside from sending the Magistrate Judge a Christmas card 12 that has been stricken – has not communicated with the Court in this case since 13 August 2022. 14 As discussed below, this action is dismissed due to plaintiff’s unreasonable 15 failure to prosecute and his failure to comply with the October Order. 16 II. PERTINENT LAW 17 It is well-established that a district court may sua sponte dismiss an action 18 where the plaintiff has failed to comply with a court order and/or unreasonably 19 failed to prosecute. See Link v. Wabash Railroad Co., 370 U.S. 626, 629-33 20 (1962); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.) (as amended), cert. 21 denied, 506 U.S. 915 (1992); see also McKeever v. Block, 932 F.2d 795, 797 (9th 22 Cir. 1991) (district court may sua sponte dismiss action “only for an unreasonable 23 failure to prosecute”) (citations omitted); see also Edwards v. Marin Park, Inc., 356 24 F.3d 1058, 1065 (9th Cir. 2004) (sua sponte dismissal pursuant to Fed. R. Civ. P. 25 26 3Specifically, the Magistrate Judge advised plaintiff, albeit in greater detail and with 27 citation to authorities, that plaintiff’s Complaint, among other deficiencies, appeared to be barred by Heck v. Humphrey, 512 U.S. 477 (1994) and failed to state a viable Section 1983 claim 28 against at least defendant Koury. 3 1 41(b) proper sanction in cases where a plaintiff is notified of deficiencies in 2 complaint and is given “the opportunity to amend [the complaint] or be dismissed” 3 but the plaintiff “[does] nothing”) (citations omitted; emphasis in original). 4 In determining whether to dismiss an action for failure to prosecute or failure 5 to comply with court orders, a district court must consider several factors, namely 6 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 7 to manage its docket; (3) the risk of prejudice to defendants; (4) the public policy 8 favoring disposition of cases on their merits; and (5) the availability of less drastic 9 alternatives. See In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994) (failure to 10 prosecute); Ferdik, 963 F.2d at 1260-61 (failure to comply with court orders). 11 Dismissal is appropriate under the foregoing analysis “where at least four factors 12 support dismissal . . . or where at least three factors ‘strongly’ support dismissal.” 13 Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citations 14 omitted). 15 Where a plaintiff is proceeding pro se, however, the court must first notify 16 the plaintiff of the deficiencies in the complaint so that the plaintiff has an 17 opportunity “to amend effectively.” Ferdik, 963 F.2d at 1261 (citation omitted). In 18 addition, where a Magistrate Judge originally dismissed the complaint with leave to 19 amend, the District Judge must review that decision before dismissing the entire 20 action. See McKeever, 932 F.2d at 797 (“While the magistrate can dismiss 21 complaints with leave to amend, the district court necessarily must review that 22 decision before dismissing the entire action.”). A district judge may not dismiss an 23 action for failure to comply with a court order (e.g., the Magistrate Judge’s order to 24 file an amended complaint) or for unreasonable failure to prosecute if the initial 25 decision to dismiss a complaint was erroneous. Yourish v. California Amplifier, 26 191 F.3d 983, 992 (9th Cir. 1999) (citing id.). 27 /// 28 /// 4 1 III. DISCUSSION AND ORDER 2 First, the Court has reviewed the October Order and finds that it adequately 3 and properly notified plaintiff of the deficiencies in the Complaint and afforded 4 plaintiff an opportunity to amend effectively. This Court agrees with and adopts the 5 October Order, and finds that the Magistrate Judge properly dismissed the 6 Complaint with leave to amend for the reasons discussed in the October Order. 7 Second, dismissal is appropriate based upon plaintiff’s failure to comply with 8 the October Order and the failure to prosecute. The Court has considered the five 9 factors discussed above – the public’s interest in expeditious resolution of litigation, 10 the court’s need to manage its docket, the risk of prejudice to defendants, the public 11 policy favoring disposition of cases on their merits, and the availability of less 12 drastic alternatives. The first two factors – the public’s interest in expeditiously 13 resolving this litigation and the Court’s interest in managing the docket – strongly 14 weigh in favor of dismissal. As noted above, plaintiff has been notified of the 15 deficiencies in the Complaint and has been given the opportunity to amend it, to 16 dismiss it, or to notify the Court that he wishes to stand thereon. He has done 17 nothing. See Edwards, 356 F.3d at 1065. The third factor, risk of prejudice to 18 defendants, also weighs strongly in favor of dismissal. See Anderson v. Air West, 19 Inc., 542 F.2d 522, 524 (9th Cir. 1976) (prejudice to defendants presumed from 20 unreasonable delay) (citation omitted). The fourth factor, the public policy favoring 21 disposition of cases on their merits, is greatly outweighed by the factors in favor of 22 dismissal discussed herein. As for the fifth factor, since plaintiff has already been 23 cautioned of the consequences of his failure to prosecute and his failure to comply 24 with the October Order, and has been afforded the opportunity to avoid such 25 consequences but has not responded, no sanction lesser than dismissal is feasible. 26 See, e.g., Yourish, 191 F.3d at 989 (dismissal of action with prejudice not excessive 27 sanction for plaintiffs’ failure timely to comply with court’s order to submit an 28 amended complaint). 1 IT IS THEREFORE ORDERED that this action is dismissed based upon 2 || plaintiff's unreasonable failure to prosecute and his failure to comply with the 3 October Order. 4 IT IS SO ORDERED. 5 | DATED: _May 2, 2023 6 ZY, 7 8 HONORABLE SHERILYN PEACE GARNETT 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28