1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES LEONARD BUTLER, No. 2:23-cv-2855-DJC-SCR 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 W. GREGORY KLEIN, et al., 15 Defendants. 16 17 Plaintiff James Leonard Butler is proceeding pro se in this action, which was referred to 18 the undersigned in accordance with Local Rule 302(c)(21) and

(b)(1). On 19 December 7, 2023, Plaintiff filed a complaint and a motion to proceed in forma pauperis (“IFP”). 20 ECF Nos. 1 and 2. On August 28, 2024, this Court screened the complaint per the screening 21 process required by the IFP statute and dismissed the complaint for failure to comply with Federal 22 Rule of Civil Procedure 8 and failure to state a claim. ECF No. 4. The Court’s order allowed 23 Plaintiff 30 days to file an amended complaint that cured the deficiencies and noted the amended 24 complaint “must include a sufficient jurisdictional statement and comply with Rule 8.” ECF No. 25 4 at 5. The Order warned that noncompliance may result in a recommendation of dismissal.

26 at 5-6. Plaintiff did not file an amended complaint. 27 On October 15, 2024, this Court issued an Order to Show Cause directing Plaintiff to 28 show cause, in writing, within 14 days why the failure to file an amended complaint should not 1 result in a recommendation that this case be dismissed for failure to prosecute. ECF No. 5. The 2 Order warned that if Plaintiff failed to respond the Court would recommend dismissal pursuant to 3 Federal Rule of Civil Procedure 41 and Local Rule 110. More than 14 days have passed, and 4 Plaintiff has not filed a response. 5 In recommending this action be dismissed for failure to prosecute, the Court has 6 considered “(1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to 7 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 8 disposition of cases on their merits; and (5) the availability of less drastic alternatives.” Ferdik v. 9 Bonzelet,

(9th Cir. 1992) (citation omitted). “The public’s interest in 10 expeditious resolution of litigation always favors dismissal.” Yourish v. Cal. Amplifier,

(9th Cir. 1999). The Court’s need to manage its docket also weighs in favor of 12 dismissal, particularly given the heavy caseload in this District. The third factor is neutral given 13 that Defendants have not yet appeared, but “[u]nnecessary delay inherently increases the risk that 14 witnesses’ memories will fade and evidence will become stale.” Pagtalunan v. Galaza,

(9th Cir. 2002). The fourth factor weighs against dismissal. The Court has considered 16 less drastic alternatives and concludes that dismissal without prejudice is appropriate, particularly 17 given that Plaintiff has not responded to the Order to Show Cause issued over six weeks ago. 18 Therefore, IT IS HEREBY RECOMMENDED that this action be dismissed, without prejudice, 19 for lack of prosecution and for failure to comply with the court’s order. See Fed. R. Civ. P. 41(b); 20 Local Rule 110. 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to this case, pursuant to the provisions of

(b)(l). Within fourteen (14) 23 days after being served with these findings and recommendations, Plaintiff may file written 24 objections with the court. Such document should be captioned “Objections to Magistrate Judge’s 25 Findings and Recommendations.” Local Rule 304(d). Plaintiff is advised that failure to file 26 //// 27 //// 28 //// 1 | objections within the specified time may waive the right to appeal the District Court’s order. 2 || Martinez v. Yist,

(9th Cir. 1991). 3 || DATED: December 3, 2024 frfot 5 kwh 6 SEAN C. RIORDAN UNITED STATES MAGISTRATE JUDGE 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28