1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL ALAN YOCOM, Case No. 1:21-cv-00849-HBK (PC) 12 Plaintiff, ORDER TO ASSIGN A DISTRICT JUDGE

13 v. FINDINGS AND RECOMMENDATIONS TO 14 COUNTY OF TULARE, MIKE DISMISS ACTION WITHOUT PREJUDICE1

BOUDREAUX, WELL PATH MEDICAL 15 GROUP, DR. LIBERSTEIN, and DOES 1- 14-DAY DEADLINE 25, 16 Defendants. 17 18 Plaintiff Michael Alan Yocom is a state prisoner proceeding pro se and in forma pauperis 19 in this civil rights action. For the reasons set forth below, the undersigned recommends that the 20 District Court dismiss this action without prejudice for Plaintiff’s failure to comply with a court 21 order and prosecute this action. 22 BACKGROUND 23 Plaintiff, who is currently confined at Valley State Prison, initiated this action by filing a 24 rights complaint under

stemming from events that occurred while he was 25 confined in the Tulare County Jail. (Doc. No. 1). The complaint alleged that Defendants were 26 deliberately indifferent for failing to hospitalize Plaintiff for his self-reported medical claims of 27 1 This matter was referred to the undersigned pursuant to

(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2022). 1 organ failure, despite medical officials examining Plaintiff and ordering medical testing. (Id. at 2- 2 5). Plaintiff sought an injunction to prevent his from being transferred to a state prison, a court 3 order to hospitalize Plaintiff, and “an immediate cash dollar settlement.” (Id. at 4). 4 On August 25, 2023,2 the Court issued a screening order pursuant 28 U.S.C. § 1915A 5 finding the Complaint, as pled, failed to state any federal claim. (See generally Doc. No. 15, 6 “Screening Order”). The Court afforded Plaintiff three options: (1) file an amended complaint; 7 (2) file a notice that he intends to stand on his initial complaint subject to the undersigned 8 recommending the district court dismiss the complaint for reasons stated in the Screening Order; 9 or (3) file a notice to voluntarily dismiss this action, without prejudice, under Federal Rule of 10 Civil Procedure 41(a)(1) because no defendant had yet been served. (Id. at 10). The Court 11 directed Plaintiff to deliver his response to the Screening Order to correctional officials for 12 mailing no later than September 25, 2023. (Id. at ¶1). The Court further expressly warned 13 Plaintiff that if he “fails to timely respond to this Court Order or seek an extension of time to 14 comply” the undersigned “will recommend that the district court dismiss this case as a sanction 15 for Plaintiff’s failure to comply with a court order and prosecute this action.” (Id. at ¶ 2). As of 16 the date of this of these Findings and Recommendation, Plaintiff has failed to exercise any of the 17 three options, nor requested an extension of time to comply with the Screening Order, and the 18 time to do so has expired.3 See docket. 19 APPLICABLE LAW AND ANALYSIS 20 A. Legal Standard 21 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action 22 when a litigant fails to prosecute an action or fails to comply with other Rules or with a court 23 order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger,

, 889 24 (9th Cir. 2019) (citations omitted). Similarly, this Court’s Local Rules, which correspond with 25

26 2 Although directed to either pay the $402.00 filing fee or file an application to proceed in forma pauperis on June 2, 2021 (Doc. No. 3), due to several transfers, Plaintiff did not file an application to proceed in 27 forma pauperis until August 16, 2023, after the court issued an order to show cause. (Doc. Nos. 11, 13). 3 The undersigned allotted 16 days from the September 25, 2023, deadline to account for any delays in 28 mailing before issuing these Findings and Recommendations. 1 Federal Rule of Civil Procedure 11, provide, “[f]ailure of counsel or of a party to comply with … 2 any order of the Court may be grounds for the imposition by the Court of any and all sanctions … 3 within the inherent power of the Court.” E.D. Cal. L.R. 110. “District courts have inherent power 4 to control their dockets” and, in exercising that power, may impose sanctions, including dismissal 5 of an action. Thompson v. Housing Auth., City of Los Angeles,

(9th Cir. 1986). 6 A court may dismiss an action based on a party’s failure to prosecute an action, obey a court 7 order, or comply with local rules. See, e.g., Ferdik v. Bonzelet,

(9th Cir. 8 1992) (dismissal for failure to comply with a court order to amend a complaint); Malone v. U.S. 9 Postal Service,

(9th Cir. 1987) (dismissal for failure to comply with a court 10 order); Henderson v. Duncan,

(9th Cir. 1986) (dismissal for failure to 11 prosecute and to comply with local rules). In determining whether to dismiss an action, the Court 12 must consider the following factors: (1) the public’s interest in expeditious resolution of 13 litigation; (2) the Court’s need to manage its docket; (3) the risk of prejudice to the defendants; 14 (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less 15 drastic sanctions. Henderson,

; Carey v. King,

(9th Cir. 16 1988). 17 B. Analysis 18 After considering each of the above-stated factors, the undersigned concludes dismissal 19 without prejudice is warranted in this case. As to the first factor, the expeditious resolution of 20 litigation is deemed to be in the public interest, satisfying the first factor. Yourish v. California 21 Amplifier,

(9th Cir. 1999). 22 Turning to the second factor, this Court’s need to efficiently manage its docket cannot be 23 overstated. This Court has “one of the heaviest caseloads in the nation,” and due to the delay in 24 filling judicial vacancies, which was further exacerbated by the Covid-19 pandemic, operates 25 under a declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 26 Emergency in the Eastern District of California. This Court’s time is better spent on its other 27 matters than needlessly consumed managing a case with a recalcitrant litigant. The Court cannot 28 effectively manage its docket when a litigant ceases to litigate his/her case or respond to a court 1 order. Thus, the Court finds that the second factor weighs in favor of dismissal. 2 Delays inevitably have the inherent risk that evidence will become stale or witnesses’ 3 memories will fade or be unavailable and can prejudice a defendant, thereby satisfying the third 4 factor. See Sibron v. New York,

(1968). Thus, the third factor—risk of prejudice 5 to defendant—weighs in favor of dismissal since a presumption of injury arises from the 6 unreasonable delay in prosecuting an action. Anderson v. Air W.,

(9th Cir. 7 1976). Because Plaintiff’s inaction amounts to an unreasonable delay in prosecuting this action, 8 the third factor weighs in favor of dismissal. 9 The fourth factor usually weighs against dismissal because public policy favors the 10 disposition of cases on the merits. Pagtalunan v. Galaza,

(9th Cir. 2002). 11 However, “this factor lends little support to a party whose responsibility it is to move a case 12 toward disposition on the merits but whose conduct impedes progress in that direction,” which is 13 the case here. In re Phenylpropanolamine (PPA) Products Liability Litigation,

, 14 1228 (9th Cir. 2006) (citation omitted). Indeed, “trial courts do not have time to waste on 15 multiple failures by aspiring litigants to follow the rules and requirements of our courts.” 16 Pagtalunan v. Galaza,

(9th Cir. 2002) (Trott, J., concurring in affirmance of 17 district court’s involuntary dismissal with prejudice of habeas petition where petitioner failed to 18 timely respond to court order and noting “the weight of the docket-managing factor depends upon 19 the size and load of the docket, and those in the best position to know what that is are our 20 beleaguered trial judges.”). Further, as set forth in the Screening Order, the Court already 21 determined that the Complaint, as pled, failed to state a claim, so this factor does not weigh in 22 favor of the Plaintiff. 23 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 24 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik,

; 25 Malone,

; Henderson,

. The Court’s August 21, 2023 Order 26 expressly warned Plaintiff that his failure to comply with the Court’s order would result in a 27 recommendation for dismissal of this action. (Doc. 15 at 10). Thus, Plaintiff had adequate 28 warning that dismissal could result from his noncompliance. And the instant dismissal is a 1 | dismissal without prejudice, which is a lesser sanction than a dismissal with prejudice, thereby 2 | satisfying the fifth factor. 3 After considering the factors set forth supra and binding case law, the undersigned 4 | recommends dismissal, without prejudice, under Fed. R. Civ. P. 41(b) and Local Rule 110. 5 Accordingly, it is ORDERED: 6 The Clerk of the Court randomly assign this case to a District Judge. 7 It is further RECOMMENDED: 8 This action be DISMISSED without prejudice for Plaintiffs failure to obey a court order 9 | and failure to prosecute this action. 10 NOTICE 11 These Findings and Recommendations will be submitted to the United States District 12 | Judge assigned to this case, pursuant to the provisions of

(b)(). Within 14 days 13 | of the date of service of these Findings and Recommendations, a party may file written objections 14 | with the Court. The document should be captioned, “Objections to Magistrate Judge’s Findings 15 | and Recommendations.” A party’s failure to file objections within the specified time may result in 16 | waiver of his rights on appeal. Wilkerson v. Wheeler,

(9th Cir. 2014) (citing 17 | Baxter v. Sullivan,

(9th Cir. 1991)). 18 | Dated: _ October 11, 2023 Wiha. □□ fares Zackte 20 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE

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