1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ERICK DONTAY GRAYSON, Case No.: 1:24-cv-00311-SKO 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS FOR PLAINTIFF’S FAILURE TO 13 v. OBEY COURT ODERS AND FAILURE TO PROSECUTE 14 LAURA PEREZ, et al., 14-DAY OBJECTION DEADLINE 15 Defendants. Clerk of the Court to Assign District Judge 16 17 Plaintiff Erick Dontay Grayson is proceeding pro se and in forma pauperis in this civil 18 rights action pursuant to

. 19 I. INTRODUCTION 20 Plaintiff filed his original complaint on March 14, 2024. (Doc. 1.) On May 9, 2024, the 21 Court issued its First Screening Order. (Doc. 10.) The Court found Plaintiff’s complaint failed to 22 state a claim upon which relief can be granted. (Id. at 4-7.) Plaintiff was granted leave to file a 23 first amended complaint or a notice of voluntary dismissal within 21 days of the date of the order. 24 (Id. at 7-8.) More than 30 days have passed, and Plaintiff has failed to file a first amended 25 complaint or a notice of voluntary dismissal. 26 II. DISCUSSION 27 The Local Rules, corresponding with Federal Rule of Civil Procedure 11, provide, “[f]ailure of counsel or of a party to comply with . . . any order of the Court may be grounds for 1 the imposition by the Court of any and all sanctions . . . within the inherent power of the Court.” 2 Local Rule 110. “District courts have inherent power to control their dockets” and, in exercising 3 that power, may impose sanctions, including dismissal of an action. Thompson v. Housing Auth., 4 City of Los Angeles,

(9th Cir. 1986). A court may dismiss an action based on a 5 party’s failure to prosecute an action, obey a court order, or comply with local rules. See, e.g., 6 Ferdik v. Bonzelet,

(9th Cir. 1992) (dismissal for failure to comply with a 7 court order to amend a complaint); Malone v. U.S. Postal Service,

(9th Cir. 8 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan,

, 9 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). 10 In determining whether to dismiss an action, the Court must consider several factors: 11 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 12 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 13 cases on their merits; and (5) the availability of less drastic sanctions. Henderson,

1423; Carey v. King,

(9th Cir. 1988). 15 Here, Plaintiff has not filed a first amended complaint or a notice of voluntary dismissal. 16 The Court cannot effectively manage its docket if Plaintiff ceases litigating his case. Thus, the 17 Court finds that both the first and second factors—the public’s interest in the expeditious 18 resolution of litigation and the Court’s need to manage its docket— weigh in favor of dismissal. 19 Carey,

. 20 Next, while the risk of prejudice to defendants is a lesser factor here because the named 21 defendants have not appeared in the action, a presumption of harm or injury arises from the 22 occurrence of unreasonable delay in prosecuting an action. See Anderson v. Air W.,

, 23 524 (9th Cir. 1976). Plaintiff’s failure to file a first amended complaint or a notice of voluntary 24 dismissal amounts to an unreasonable delay in prosecuting this action. Therefore, the Court finds 25 the third factor—a risk of prejudice to defendants—weighs in favor of dismissal. Carey,

. 27 The fourth factor usually weighs against dismissal because public policy favors 1 “this factor lends little support to a party whose responsibility it is to move a case toward 2 disposition on the merits but whose conduct impedes progress in that direction.” In re 3 Phenylpropanolamine (PPA) Products Liability Litigation,

(9th Cir. 2006) 4 (citation omitted). Plaintiff is failing to move this case forward by not filing an amended 5 complaint or a notice of voluntary dismissal, and he is also impeding its progress by failing to 6 obey court orders. Thus, the Court finds the fourth factor—the public policy favoring disposition 7 on the merits—also weighs in favor of dismissal. Carey,

. 8 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 9 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik,

; 10 Malone,

; Henderson,

. Here, the screening order expressly 11 warned: “If Plaintiff fails to comply with this order, the Court will recommend that this 12 action be dismissed, without prejudice, for failure to obey a court order and for failure to 13 prosecute.” (See Doc. 10 at 8, emphasis in original.) Additionally, Plaintiff was previously 14 warned that a failure to obey court orders may result in dismissal of the case. (See Doc. 3 at 1 15 [First Informational Order In Prisoner/Civil Detainee Civil Rights Case].) Thus, Plaintiff had 16 adequate warning that dismissal could result from his noncompliance with Court orders. 17 Moreover, at this stage of the proceedings, there is little available to the Court that would 18 constitute a satisfactory lesser sanction while protecting the Court from further unnecessary 19 expenditure of its scarce resources. Therefore, the fifth factor—the availability of less drastic 20 sanctions—weighs in favor of dismissal. Carey,

. 21 In sum, it appears that Plaintiff has abandoned this action. More than 21 days have passed 22 following the Court’s screening order directing Plaintiff to file a first amended complaint or a 23 notice of voluntary dismissal. Whether Plaintiff has done so intentionally or mistakenly is 24 inconsequential. It is Plaintiff’s responsibility to comply with the Court’s orders. 25 // 26 // 27 // 1 III. CONCLUSION AND RECOMMENDATION 2 Based on the foregoing, IT IS HEREBY ORDERED that the Clerk of the Court shall 3 assign a district judge to this action. 4 Further, for the reasons stated above, the Court RECOMMENDS that this action be 5 DISMISSED without prejudice for Plaintiff’s failure to obey court orders and failure to 6 prosecute. 7 These Findings and Recommendations will be submitted to the district judge assigned to 8 this case, pursuant to

(b)(l). Within 14 days of the date of service of these 9 Findings and Recommendations, a party may file written objections with the Court. The 10 document should be captioned, “Objections to Magistrate Judge’s Findings and 11 Recommendations.” Failure to file objections within the specified time may result in waiver of 12 rights on appeal. Wilkerson v. Wheeler,

(9th Cir. 2014) (citing Baxter v. 13 Sullivan,

(9th Cir. 1991)). 14 IT IS SO ORDERED. 15

16 Dated: June 11, 2024 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27