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.: 1:22-cv-0930 JLT GSA MITCHELL QUINTIN GRADY, ) 12 ) ORDER ADOPTING IN PART THE FINDINGS Plaintiff, ) AND RECOMMENDATIONS, DISMISSING THE 13 ) ACTION WITHOUT PREJUDICE, AND v. ) 14 ) DIRECTING THE CLERK OF COURT TO CLOSE CDCR, et al., ) THE CASE 15 ) Defendants. ) (Doc. 13) 16 )

17 Suten Blackgold, also known as Mitchell Quintin Grady, seeks to hold the defendants liable for 18 violations of rights while incarcerated at Kern Valley State Prison. (See generally Doc. 1.) Because 19 Plaintiff failed to obey the Court’s order, and failed to prosecute the action, the action is DISMISSED 20 without prejudice. 21 I. Relevant Background 22 Blackgold initiated this action by filing a complaint on July 27, 2022, seeking to hold the 23 CDCR, the Warden at KVSP, and correctional officers at KSVP liable for hate crimes and violations 24 of the right to due process. (Doc. 1 at 3-4.) Blackgold requested to proceed in forma pauperis in the 25 action, and the Court granted the motion. (Docs. 2, 7.) 26 On January 22, 2024, the Court ordered Blackgold to show cause why the in forma pauperis 27 status should not be revoked. (Doc. 11.) The Court observed that proceeding in forma pauperis “is 28 not a constitutional right.” (Id. at 2, quoting Rodriguez v. Cook,

(9th Cir. 1999).) 1 The Court found Blackgold is subject to the three-strike bar of

(g), because prior to 2 filing this action, Blackgold filed “at least three cases … [that] qualify as a strike,” including: 3 • Blackgold v. Alonzo, No. 3:20-cv-01273 MMA WVG (S.D. Cal. July 16, 2021) (dismissed for failure to state a claim); 4 • Grady v. Wyatt, No. 3:20-cv-01631 AJB BGS (S.D. Cal. Jan. 7, 2021) 5 (dismissed for failure to state a claim); and

6 • Grady v. Correa, No. 3:20-cv-01997 AJB JLB (S.D. Cal. Feb. 22, 2021) (dismissed for failure to state a claim) 7

8 (Doc. 11 at 4-5.) In addition, the Court found the imminent danger exception to Section 1915(g) does 9 not apply, because Blackgold “did not make plausible allegations of imminent danger of serious 10 physical harm….” (Id. at 6.) Therefore, the Court ordered Blackgold to show cause why the 11 permission to proceed in forma pauperis should not be revoked or to pay the filing fee. (Id. at 7.) The 12 Court informed Blackgold that failure to comply “may result in recommendations that the matter[] be 13 dismissed for failure to obey court orders.” (Id. at 8, emphasis omitted.) 14 After Blackgold did not respond to the order to show cause, the magistrate judge found that 15 “Plaintiff has not filed his showing[] of cause.” (Doc. 13 at 2.) The magistrate judge observed that, 16 “Federal Rule of Civil Procedure 41 permits this Court to dismiss a matter if a plaintiff fails to comply 17 with federal rules and/or he fails to obey a court order.” (Id. at 3, citing Fed. R. Civ. P. 41(b).) The 18 magistrate judge also observed “Local Rule 110 also permits the imposition of sanctions when a party 19 fails to comply with an order of this Court.” (Id.) Therefore, the magistrate judge recommended the 20 matter “be dismissed for failure to obey” the Court’s order. (Id., emphasis omitted.) 21 The Court served the Findings and Recommendations and notified Blackgold that any 22 objections were due within 14 days, or no longer than March 14, 2024. (Doc. 13 at 3.) The Court 23 advised Blackgold that the failure to file objections within the specified time may result in the waiver 24 of rights on appeal. (Id. at 3-4, citing Martinez v. Ylst,

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

(b)(1)(C), this Court performed a de novo review of this case. 2 Having carefully reviewed the matter, the Court concludes the finding that Blackgold failed to comply 3 with the Court’s order is supported by the record. Importantly, however, the magistrate judge did not 4 provide any analysis related to the propriety of terminating sanctions in this action, and the Court must 5 do so. See, e.g., Malone v. U.S. Postal Service,

(9th Cir. 1987) (“The district 6 court abuses its discretion if it imposes a sanction of dismissal without first considering the impact of 7 the sanction and the adequacy of less drastic sanctions.” [citation omitted].) 8 II. Failure to Prosecute and Obey the Court’s Orders 9 The Local Rules, corresponding with Fed. R. Civ. P. 11, provide: “Failure of counsel or of a 10 party to comply with . . . any order of the Court may be grounds for the imposition by the Court of any 11 and all sanctions . . . within the inherent power of the Court.” LR 110. “District courts have inherent 12 power to control their dockets,” and in exercising that power, a court may impose sanctions including 13 dismissal of an action. Thompson v. Housing Authority of Los Angeles,

(9th Cir. 14 1986). A court may dismiss an action for a party’s failure to prosecute an action or failure to obey a 15 court order. See, e.g., Ferdik v. Bonzelet,

(9th Cir. 1992) (dismissal for failure 16 to comply with an order to file an amended complaint); Malone,

(dismissal for failure 17 to comply with a court order); Henderson v. Duncan,

(9th Cir. 1986) (dismissal 18 for failure to prosecute). 19 III. Discussion and Analysis 20 To determine whether to dismiss an action for failure to prosecute and failure to obey a Court 21 order, the Court must consider several factors, including: “(1) the public’s interest in expeditious 22 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 23 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability 24 of less drastic sanctions.” Henderson,

; see also Ferdik,

; 25 Thomspon,

. 26 A. Public interest and the Court’s docket 27 In the case at hand, the public’s interest in expeditiously resolving this litigation and the Court’s 28 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 2 dismissal”); Ferdik,

(recognizing that district courts have inherent interest in 3 managing their dockets without being subject to noncompliant litigants). This Court cannot, and will 4 not hold, this case in abeyance based upon the failure to comply with the Court’s order and failure to 5 continue prosecution in a timely manner. See Morris v. Morgan Stanley & Co.,

(9th 6 Cir. 1991) (a plaintiff has the burden “to move toward… disposition at a reasonable pace, and to refrain 7 from dilatory and evasive tactics”). Thus, these factors weigh in favor of dismissal of the action. 8 B. Prejudice to Defendants 9 To determine whether the defendant suffer prejudice, the Court must “examine whether the 10 plaintiff’s actions impair the … ability to go to trial or threaten to interfere with the rightful decision of 11 the case.” Malone,

(citing Rubin v. Belo Broadcasting Corp.,

(9th 12 Cir. 1985)). Significantly, a presumption of prejudiced arises when a plaintiff unreasonably delays the 13 prosecution of an action. See Anderson v. Air West,

(9th Cir. 1976). Blackgold has 14 not taken action to further the prosecution of the action, despite being ordered by the Court to show 15 cause why the in forma pauperis status should not be revoked, or pay the filing fee. Therefore, this 16 factor weighs in favor of dismissal of the action. 17 C. Consideration of less drastic sanctions 18 The Court “abuses its discretion if it imposes a sanction of dismissal without first considering 19 the impact of the sanction and the adequacy of less drastic sanctions.” United States v. Nat’l Medical 20 Enterprises, Inc.,

(9th Cir. 1986). However, a court’s warning to a party that the 21 failure to obey could result in dismissal satisfies the “consideration of alternatives” requirement. See 22 Malone,

; Ferdik,

. As the Ninth Circuit explained, “a plaintiff can 23 hardly be surprised” by a sanction of dismissal “in response to willful violation of a pretrial order.” 24 Malone,

. 25 In the “First Information Order,” the Court informed Blackgold the failure to comply with its 26 orders “will be grounds for imposition of sanctions which may include dismissal of the case.” (Doc. 3 27 at 1, citing Local Rule 110, Fed. R. Civ. P. 41(b).) Again, in the order to show cause, the Court warned 28 that failure to respond could result in a recommendation that the action “be dismissed for failure to 1 || obey court orders.” (Doc. 11 at 8, emphasis in original.) Importantly, the Court need only warn a 2 || party once that the matter could be dismissed for failure to comply to satisfy the requirements 3 || considering alternative sanctions. Ferdik,

; see also Titus v. Mercedes Benz of Nortl 4 || America,

, 749 n.6 (3rd Cir. 1982) (identifying a “warning” as an alternative sanction). 5 || Accordingly, the warnings satisfied the requirement that the Court consider lesser sanctions, and this 6 || factor weighs in favor of dismissal of the action. See Ferdik,

; Henderson,

|| 1424; Titus,

n.6. 8 D. Public policy 9 Given Blackgolds’s failure obey the Court’s order and failure to prosecute the action, the poli 10 || favoring disposition of cases on their merits is outweighed by the factors in favor of dismissal. See 11 || Malone,

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