1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DESHAYLA VALENTINE, No. 2:22-cv-02238–DAD-CKD PS 12 Plaintiff, FINDINGS AND RECOMMENDATIONS ON

MOTION TO DISMISS

13 v. (ECF No. 7) 14 SOCIAL SECURITY

ADMINISTRATION,

15 Defendant. 16

17 18 On December 15, 2022, defendant, the Social Security Administration, removed 19 plaintiff’s state court civil action to this court.1 (ECF No. 1.) On January 5, 2023, defendant filed 20 a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) and set the hearing to take 21 place on February 15, 2023. (ECF No. 7.) Plaintiff did not respond to defendants’ motion to 22 dismiss. (See Id.) Accordingly, on February 7, 2023, the court vacated the hearing, cautioned 23 plaintiff that a written response to the motion was required, and ordered plaintiff to file an 24 opposition or statement of non-opposition to the motion to dismiss within 14 days. Plaintiff has 25 not filed an opposition, statement of non-opposition, or otherwise responded to the court order. 26 This action should be dismissed for failure to prosecute. 27 1 Plaintiff proceeds without the assistance of counsel; thus, this case is assigned to the 28 undersigned pursuant to Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). 1 Legal Standard 2 Under Eastern District Local Rule 183(a), an individual proceeding without an attorney is 3 bound by the Federal Rules of Civil Procedure and all other applicable law. See also King v. 4 Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the same rules of 5 procedure that govern other litigants”) (overruled on other grounds). A district court may impose 6 sanctions, including involuntary dismissal of a plaintiff’s case pursuant to Federal Rule of Civil 7 Procedure 41(b), where that plaintiff fails to prosecute his or her case or fails to comply with the 8 court’s orders, the Federal Rules of Civil Procedure, or the court’s local rules. See Chambers v. 9 NASCO, Inc., 501 U.S. 32, 44 (1991) Hells Canyon Preservation Council v. U.S. Forest Serv., 10 403 F.3d 683, 689 (9th Cir. 2005); Local Rule 183(a). 11 Before dismissing this case for failure to prosecute, the court must weigh the following 12 five factors: 13 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 14 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives. 15 16 Ferdik, 963 F.2d at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002). 17 Analysis 18 The first two factors weigh in favor of dismissal because this case has already been 19 delayed and is now unable to move forward due to plaintiff’s failure to prosecute. For the same 20 reason, the third factor also slightly favors dismissal. With the passage of time, witnesses’ 21 memories fade and evidence becomes stale. Under the fourth factor, public policy favors 22 disposition of cases on their merits, but plaintiff’s failure to prosecute precludes a resolution on 23 the merits. Under the fifth factor, availability of less drastic alternatives, the court has attempted 24 to avoid dismissal by cautioning plaintiff that a written opposition to the motion was required and 25 granting further time to file the opposition. However, plaintiff has been incommunicado since the 26 case was removed to this court, leaving the court with little alternative but to recommend 27 dismissal. After carefully evaluating the Ferdik factors, the court concludes that dismissal is 28 appropriate. 1 RECOMMENDATIONS 2 For the reasons set forth above, it is HEREBY RECOMMENDED that: 3 1. The action be DISMISSED pursuant to Federal Rule of Civil Procedure 41(b); and 4 2. The Clerk of the Court be directed to CLOSE this case. 5 These findings and recommendations are submitted to the United States District Judge 6 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 7 || days after being served with these findings and recommendations, any party may file written 8 || objections with the court and serve a copy on all parties. Such a document should be captioned 9 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 10 || shall be served on all parties and filed with the court within fourteen (14) days after service of the 11 || objections. The parties are advised that failure to file objections within the specified time may 12 || waive the right to appeal the District court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 13 || 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 14 | Dated: March 1, 2023 / aa / x ly a 1s CAROLYN K DELANEY 16 UNITED STATES MAGISTRATE JUDGE 17 18 || □□□□□□□□□□□□□□□□□□□□□□□□□□□ 19 20 21 22 23 24 25 26 27 28