IN THE UNITED STATES DISTRICT COURT

2 FOR THE DISTRICT OF ALASKA

3

4 KING DAVID CATHEY,

5 Plaintiff,

6 v. Case No. 3:22-cv-00020-SLG-KFR

7 STAT E TROOPER, et al., 8 Defendants. 9

10 REPORT AND RECOMMENDATION TO DISMISS FOR FAILURE TO PROSECUTE

11 On February 1, 2022, King David Cathey, a self-represented prisoner

12 (hereinafter “Plaintiff”), filed a Prisoner’s Complaint under the Civil Rights Act, 42

(hereinafter “Complaint”); a civil cover sheet; a Prisoner’s

14 Application to Waive Prepayment of the Filing Fee; and an affidavit.1 On June 3,

15 2022, this Court issued a Screening Order finding that Plaintiff failed to state a

16 claim upon which relief may be granted, but provided guidance on the Complaint’s

17 deficiencies, and granted leave to amend.2 The Court’s Screening Order instructed:

18 “If Plaintiff does not file either an Amended Complaint or a Notice of Voluntary

19 Dismissal on the Court’s form by July 5, 2022, this case may be dismissed without

20 further notice to Plaintiff, and he risks receiving a strike.”3

21 I. Failure to Prosecute

22 As of the date of this Report and Recommendation, Plaintiff has not filed an

23 Amended Complaint or a Voluntary Notice of Dismissal, as ordered by the Court’s

24 June 3, 2022 Screening Order.4 For that reason, this Court now recommends that the

25

26 1 Dkts . 2–4. 27 2 Dkt. 7 3 Doc ket 7 at 16. 28 4 Dkt. 7. D istrict Court dismiss Plaintiff’s Complaint without prejudice for failure to

2 prosecute.

3 Rule 41(b) of Federal Rules of Civil Procedure permits dismissal due to a

4 plaintiff’s failure to prosecute or comply with a court order. In deciding whether to

5 dismiss for failure to prosecute or comply with court orders, a district court must

6 consider five factors: “(1) the public’s interest in expeditious resolution of litigation;

7 (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants;

8 (4) the public policy favoring disposition of cases on their merits; and (5) the

9 availability of less drastic sanctions.”5

10 Here, the first two factors — the public’s interest in expeditious resolution of

11 litigation and the Court's need to manage its docket — weigh in favor of dismissal.

12 Plaintiff’s failure to file an amended complaint within the specified timeline suggests 13 Plaintiff does not intend to litigate this action diligently.6 Further, a presumption of 14 prejudice to a defendant arises when the plaintiff unreasonably 15 delays prosecution of an action.7 Because Plaintiff has not offered any justifiable 16 reason for failing to meet the Court’s deadline, the third factor also favors 17 dismissal.8 18 The fourth factor usually weighs against dismissal because public policy 19 favors disposition on the merits.9 However, “this factor lends little support to a 20 party whose responsibility it is to move a case toward disposition on the merits but 21 22

23 5 Hernandez v. City of El Monte,

(9th Cir. 1998) (quoting Henderson v. Duncan,

(9th Cir. 1986)). 24 6 Morris v. Morgan Stanley & Co.,

(9th Cir. 1991) (a plaintiff has the burden “to move toward... disposition at a reasonable pace, and to refrain from dilatory 25 and evasive tactics”). 26 7 Anderson v. Air West,

(9th Cir. 1976). 8 See Hernandez v. City of El Monte,

, 401 (9th Cir. 1998) (reiterating that the 27 burden of production shifts to the defendant to show at least some actual prejudice only after the plaintiff has given a non-frivolous excuse for delay). 28 9 Pagtalunan v. Galaza,

(9th Cir. 2002). w hose conduct impedes progress in that direction,”10 which is the case here. Thus,

2 although this factor typically weighs against dismissal, it does not overcome

3 Plaintiff’s failure to amend his complaint.

4 The fifth factor is comprised of three subparts, which include “whether the

5 court has considered lesser sanctions, whether it tried them, and whether it warned

6 the recalcitrant party about the possibility of case-dispositive sanctions.”11 The

7 Court’s Screening Order provided Plaintiff guidance on relevant law and an

8 opportunity to amend his complaint.12 Further, the Court expressly warned Plaintiff

9 that his failure to comply with the Court’s order would result in a dismissal of this

10 action.13

11 The Court cannot move this case toward disposition without Plaintiff's

12 compliance with Court orders or participation in this litigation. Additionally, 13 Plaintiff had adequate warning that dismissal could result from his noncompliance. 14 The Court finds no other lesser sanction to be satisfactory or effective in this case.14 15 Accordingly, this Court recommends dismissal for failure to prosecute. 16 17 18 19

20 10 In re Phenylpropanolamine (PPA) Products Liability Litigation,

(9th Cir. 2006) (citing In re Exxon Valdez,

(9th Cir. 1996)). 21 11 Conn. Gen. Life Ins., 482 F.3d at 1096 (internal citation omitted). 22 12 Dkt. 7 (providing guidance about Fed. R. Civ. P. 8, Younger abstention, and the pleading requirements of a § 1983 claim) 23 13 Id. at 15-16. 14 See, e.g., Henderson,

(a district court need not exhaust every sanction 24 short of dismissal before finally dismissing a case but must explore possible and meaningful alternatives) (internal citation omitted); Adriana International Corp. v. 25 Thoeren,

, 1412 (9th Cir. 1990) (explaining despite all the elaboration of 26 factors, it is not always necessary for the court to impose less serious sanctions first, or to give any explicit warning); Gleason v. World Sav. Bank, FSB,

, at *2 (N.D. 27 Cal. July 26, 2013) (finding dismissal under Rule 41(b) appropriate where the court previously attempted the lesser sanction of issuing an order to show cause and giving the 28 plaintiff an additional opportunity to re-plead). This dismissal will count as a “strike” against Plaintiff under § 1915(g).15

2 Plaintiff already has one strike from a prior dismissed lawsuit (Cathey v. Matsu

3 Property Officer, Case No. 3:17-cv-150-RRB). After three strikes, Plaintiff will be

4 unable to file lawsuits under in forma pauperis status, unless he demonstrates

5 “imminent danger of serious physical injury.”16 The Court cautions Plaintiff as to

6 his strike status.

7 IT IS THEREFORE RECOMMENDED:

8 1. This action should be DISMISSED WITHOUT PREJUDICE.

9 2. This dismissal should constitute a second strike to Plaintiff under 28

(g). And the Court should instruct Plaintiff that if he receives a third

11 strike, he will be unable to file future lawsuits in federal court without paying the

12 filing fee or demonstrating he is in imminent danger of serious physical injury with 13 any request to waive prepayment of the filing fee. 14 3. The Clerk of Court should issue a final judgement. 15 DATED this 22nd day of September, 2022 at Anchorage, Alaska. 16 s/ Kyle F. Reardon 17 KYLE F. REARDON United States Magistrate Judge 18 District of Alaska 19 20 NOTICE OF RIGHT TO OBJECT 21 Under

(b)(1), a district court may designate a magistrate 22 judge to hear and determine matters pending before the Court. For dispositive 23 matters, a magistrate judge reports findings of fact and provides recommendations 24 25

26 15 Lomax v. Ortiz-Marquez,

(2020) (holding that Section 1915(g)’s 27 three-strikes provision refers to any dismissal for failure to state a claim, whether with prejudice or without prejudice.). 28 16

(g). t o the presiding district court judge.17 A district court judge may accept, reject, or

2 modify, in whole or in part, the magistrate judge’s order.18

3 A party may file written objections to the magistrate judge’s order within 14

4 fourteen days.19 Objections and responses are limited to five (5) pages in length

5 and should not merely reargue positions previously presented. Rather, objections

6 and responses should specifically identify the findings or recommendations

7 objected to, the basis of the objection, and any legal authority in support. Reports

8 and recommendations are not appealable orders. Any notice of appeal pursuant to

9 Fed. R. App. P. 4(a)(1) should not be filed until entry of the district court’s

10 judgment.20

11

12 13 14 15 16 17 18 19 20 21 22 23 24 25

26 17

(b)(1)(B). 27 18

(b)(1)(C). 19

28 20 See Hilliard v. Kincheloe,

(9th Cir. 1986).