1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 SUTEN BLACKGOLD, also known as ) Case No.: 1:23-cv-0782 JLT GSA MITCHELL QUINTIN GRADY, ) 12 ) ORDER ADOPTING IN PART THE FINDINGS Plaintiff, ) AND RECOMMENDATIONS, DISMISSING THE 13 ) ACTION WITHOUT PREJUDICE, AND v. ) DIRECTING THE CLERK OF COURT TO CLOSE 14 ) THE CASE HARMON, et al., ) 15 ) (Doc. 11) Defendants. ) 16 )

17 Suten Blackgold, also known as Mitchell Quintin Grady, seeks to hold correctional officer 18 Harmon liable for a violation of Plaintiff’s equal protection rights while incarcerated at Kern Valley 19 State Prison. (See generally Doc. 1.) Because Blackgold failed to obey the Court’s order, and failed 20 to prosecute the action, the action is DISMISSED without prejudice. 21 I. Relevant Background 22 Blackgold initiated this action by filing a complaint against pursuant to

on 23 May 22, 2023. (Doc. 1.) Blackgold also requested to proceed in forma pauperis in the action, and the 24 Court granted the motion. (Docs. 2, 7.) 25 On January 22, 2024, the Court ordered Blackgold to show cause why the in forma pauperis 26 status should not be revoked. (Doc. 9.) The Court observed that proceeding in forma pauperis “is not 27 a constitutional right.” (Id. at 2, quoting Rodriguez v. Cook,

(9th Cir. 1999).) 28 The Court found Blackgold is subject to the three-strike bar of

(g), because prior to 1 filing this action, Blackgold filed “at least three cases … [that] qualify as a strike,” including: 2 • Blackgold v. Alonzo, No. 3:20-cv-01273 MMA WVG (S.D. Cal. July 16, 2021) (dismissed for failure to state a claim); 3 • Grady v. Wyatt, No. 3:20-cv-01631 AJB BGS (S.D. Cal. Jan. 7, 2021) 4 (dismissed for failure to state a claim); and

5 • Grady v. Correa, No. 3:20-cv-01997 AJB JLB (S.D. Cal. Feb. 22, 2021) (dismissed for failure to state a claim) 6

7 (Doc. 9 at 4-5.) In addition, the Court found the imminent danger exception to Section 1915(g) does 8 not apply, because Blackgold “did not make plausible allegations of imminent danger of serious 9 physical harm….” (Id. at 6.) Therefore, the Court ordered Blackgold to show cause why the 10 permission to proceed in forma pauperis should not be revoked or to pay the filing fee. (Id. at 7.) The 11 Court informed Blackgold that failure to comply “may result in recommendations that the matter[] be 12 dismissed for failure to obey court orders.” (Id. at 8, emphasis omitted.) 13 After Blackgold did not respond to the order to show cause, the magistrate judge found that he 14 failed to obey the Court’s order. (Doc. 11 at 2.) The magistrate judge observed that, “Federal Rule of 15 Civil Procedure 41 permits this Court to dismiss a matter if a plaintiff fails to comply with federal 16 rules and/or he fails to obey a court order.” (Id. at 3, citing Fed. R. Civ. P. 41(b).) The magistrate 17 judge also observed that “Local Rule 110 also permits the imposition of sanctions when a party fails to 18 comply with an order of this Court.” (Id.) Therefore, the magistrate judge recommended the matter 19 “be dismissed for failure to obey” the Court’s order. (Id., emphasis omitted.) 20 The Court served the Findings and Recommendations and notified Blackgold that any 21 objections were due within 14 days, or no longer than March 14, 2024. (Doc. 11 at 43) The Court 22 advised Blackgold the failure to file objections within the specified time may result in the waiver of 23 rights on appeal. (Id. at 3-4, citing Martinez v. Ylst,

(9th Cir. 1991).) Blackgold did not 24 file objections, and the time to do so has passed.1 25 According to

(b)(1)(C), this Court performed a de novo review of this case. 26

27 1 The Court notes that though Blackgold was served with the Findings and Recommendations on February 29, 2024 – the same date as the Findings and Recommendations were issued – service was by mail, and consequently the identified 28 objection period granted approximately 10 days to respond. The Court acknowledges this timeline was brief and permitted 1 Having carefully reviewed the matter, the Court concludes the finding that Blackgold failed to comply 2 with the Court’s order is supported by the record. Importantly, however, the magistrate judge did not 3 provide any analysis related to the propriety of terminating sanctions in this action, and the Court must 4 do so. See, e.g., Malone v. U.S. Postal Service,

(9th Cir. 1987) (“The district 5 court abuses its discretion if it imposes a sanction of dismissal without first considering the impact of 6 the sanction and the adequacy of less drastic sanctions.” [citation omitted].) 7 II. Failure to Prosecute and Obey the Court’s Orders 8 The Local Rules, corresponding with Fed. R. Civ. P. 11, provide: “Failure of counsel or of a 9 party to comply with . . . any order of the Court may be grounds for the imposition by the Court of any 10 and all sanctions . . . within the inherent power of the Court.” LR 110. “District courts have inherent 11 power to control their dockets,” and in exercising that power, a court may impose sanctions including 12 dismissal of an action. Thompson v. Housing Authority of Los Angeles,

(9th Cir. 13 1986). A court may dismiss an action for a party’s failure to prosecute an action or failure to obey a 14 court order. See, e.g., Ferdik v. Bonzelet,

(9th Cir. 1992) (dismissal for failure 15 to comply with an order to file an amended complaint); Malone,

(dismissal for failure 16 to comply with a court order); Henderson v. Duncan,

(9th Cir. 1986) (dismissal 17 for failure to prosecute). 18 III. Discussion and Analysis 19 To determine whether to dismiss an action for failure to prosecute and failure to obey a Court 20 order, the Court must consider several factors, including: “(1) the public’s interest in expeditious 21 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 22 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability 23 of less drastic sanctions.” Henderson,

; see also Ferdik,

; 24 Thomspon,

. 25 A. Public interest and the Court’s docket 26 In the case at hand, the public’s interest in expeditiously resolving this litigation and the Court’s 27 interest in managing the docket weigh in favor of dismissal. See Yourish v. Cal. Amplifier,

(9th Cir. 1999) (“The public’s interest in expeditious resolution of litigation always favors 1 dismissal”); Ferdik,

(recognizing that district courts have inherent interest in 2 managing their dockets without being subject to noncompliant litigants). This Court cannot, and will 3 not hold, this case in abeyance based upon the failure to comply with the Court’s order and failure to 4 continue prosecution in a timely manner. See Morris v. Morgan Stanley & Co.,

(9th 5 Cir. 1991) (a plaintiff has the burden “to move toward… disposition at a reasonable pace, and to refrain 6 from dilatory and evasive tactics”). Thus, these factors weigh in favor of dismissal of the action. 7 B. Prejudice to Defendants 8 To determine whether the defendant suffer prejudice, the Court must “examine whether the 9 plaintiff’s actions impair the … ability to go to trial or threaten to interfere with the rightful decision of 10 the case.” Malone,

(citing Rubin v. Belo Broadcasting Corp.,

(9th 11 Cir. 1985)). Significantly, a presumption of prejudiced arises when a plaintiff unreasonably delays the 12 prosecution of an action. See Anderson v. Air West,

(9th Cir. 1976). Blackgold has 13 not taken action to further the prosecution of the action, despite being ordered by the Court to show 14 cause why the in forma pauperis status should not be revoked, or pay the filing fee. Therefore, this 15 factor weighs in favor of dismissal of the action. 16 C. Consideration of less drastic sanctions 17 The Court “abuses its discretion if it imposes a sanction of dismissal without first considering 18 the impact of the sanction and the adequacy of less drastic sanctions.” United States v. Nat’l Medical 19 Enterprises, Inc.,

(9th Cir. 1986). However, a court’s warning to a party that the 20 failure to obey could result in dismissal satisfies the “consideration of alternatives” requirement. See 21 Malone,

; Ferdik,

. As the Ninth Circuit explained, “a plaintiff can 22 hardly be surprised” by a sanction of dismissal “in response to willful violation of a pretrial order.” 23 Malone,

. 24 In the “First Information Order,” the Court informed Blackgold the failure to comply with its 25 orders “will be grounds for imposition of sanctions which may include dismissal of the case.” (Doc. 3 26 at 1, citing Local Rule 110, Fed. R. Civ. P. 41(b).) Again, in the order to show cause, the Court warned 27 that failure to respond could result in a recommendation that the action “be dismissed for failure to 28 obey court orders.” (Doc. 9 at 8, emphasis in original.) Importantly, the Court need only warn a party 1 || once that the matter could be dismissed for failure to comply to satisfy the requirements considering 2 || alternative sanctions. Ferdik,

; see also Titus v. Mercedes Benz of North America, 6 3 || F.2d 746, 749 n.6 (3rd Cir. 1982) Gidentifying a “warning” as an alternative sanction). Accordingly, 1 4 || warnings satisfied the requirement that the Court consider lesser sanctions, and this factor weighs in 5 || favor of dismissal of the action. See Ferdik,

; Henderson,

; Titus, 6 6 || F.2d at 749 n.6. 7 D. Public policy 8 Given Blackgolds’s failure obey the Court’s order and failure to prosecute the action, the poli 9 || favoring disposition of cases on their merits is outweighed by the factors in favor of dismissal. See 10 || Malone,

(explaining that although “the public policy favoring disposition of case 11 |] on their merits... weighs against dismissal, it is not sufficient to outweigh the other four factors”). 12 ||1IV. _ Conclusion and Order 13 Blackgold failed to obey the Court’s order and failed to prosecute this action. As set forth 14 || above, the factors identified by the Ninth Circuit support the imposition of terminating sanctions in th 15 |} action. Thus, the Court ORDERS: 16 1. The Findings and Recommendations dated February 29, 2024 (Doc. 11) are adopted ir 17 part. 18 2. This action is DISMISSED without prejudice. 19 3. The Clerk of Court is DIRECTED to close the action. 20 21 IT IS SO ORDERED. 22 |! Dated: _ April 17, 2024 ( LAW pA L. wan 23 TED STATES DISTRICT JUDGE 24 25 26 27 28