1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 VIRGINIA SUE GREEN, No. 2:24-cv-0378-DJC-SCR 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 THE JOHN STEWART COMPANY, et al, 15 Defendants. 16 17 18 Plaintiff Virginia Sue Green is proceeding pro se in this action, which was referred to the 19 undersigned in accordance with Local Rule 302(c)(21) and

(b)(1). On February 20 1, 2024, Plaintiff filed an application to proceed in forma pauperis (“IFP”). ECF No. 2. On 21 December 13, 2024, the Court found that this IFP application did not provide sufficient 22 information about Plaintiff’s income to make a determination. ECF No. 4 at 1. 23 The Court also found that the Complaint failed to state a claim under the Americans with 24 Disabilities Act (“ADA”) or the Eighth Amendment.

. The Complaint alleges that the 25 Defendants, who collectively own and manage Plaintiff’s apartment complex, refused to move 26 her to a first-floor apartment after her husband complained it was not safe for Plaintiff to reside 27 upstairs. ECF No. 1 at 2-7. The Complaint further alleges that the apartment complex has no 28 alternative to the stairs for disabled residents, and that Plaintiff has therefore fallen down the 1 stairs and needed medical attention on two separate occasions.

. 2 The Court found that the Complaint had failed to state a claim under the ADA, which does 3 not apply to parts of a residential complex that are only accessible by residents and their guests. 4 ECF No. 4 at 3-4 (citing, e.g., Jankey v. Twethieth Cent. Fox Film Corp.,

, 5 1178 (C.D. Cal. 1998); Estavillo v. Cortese, No. 23cv-4032-VKD,

, at *3-4 6 (N.D. Cal. May 30, 2024)). As to Plaintiff’s Eight Amendment claim, the Court found that such a 7 claim cannot apply to private entities unless they can be considered government actors. ECF No. 8 4 at 5 ((citing, e.g., Timbs v. Indiana,

(2019)). The Complaint did not plead 9 facts showing that the Defendants were government entities or otherwise acted as government 10 actors. ECF No. 4 at 5. 11 Accordingly, the Court ordered Plaintiff to file a complete IFP application within 30 days 12 of the December 13, 2024 order. Id. at 6. The Court otherwise reserved the right to recommend 13 that this action be dismissed for failure to prosecute and for failure to follow a court order. Id. It 14 also advised Plaintiff that she could amend her Complaint to rectify its failure to state a claim. Id. 15 To date, Plaintiff has neither refiled an IFP application nor amended her Complaint. 16 This action should be dismissed because Plaintiff has failed to state a claim on which 17 relief can be granted, has failed to prosecute this action, and has failed to follow a court order. 18 Local Rule 110; Fed. R. Civ. P. 41(b). When deciding whether to recommend dismissal for 19 failure to comply with a court order, the Court must consider “(1) the public’s interest in 20 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 21 prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and 22 (5) the availability of less drastic alternatives.” Ferdik v. Bonzelet,

(9th 23 Cir. 1992) (citation omitted). “The public’s interest in expeditious resolution of litigation always 24 favors dismissal.” Yourish v. Cal. Amplifier,

, 990 (9th Cir. 1999). The Court’s 25 need to manage its docket also weighs in favor of dismissal, particularly given the heavy caseload 26 in this District and the fact that the Complaint fails to state a claim. The third factor is neutral 27 given that Defendant has not yet appeared, but “[u]nnecessary delay inherently increases the risk 28 that witnesses’ memories will fade and evidence will become stale.” Pagtalunan v. Galaza, 291 1 |) F.3d 639, 643 (9th Cir. 2002). The fourth factor weighs against dismissal, but less so if Plaintiff 2 || 1s not precluded from litigating this matter. The Court has considered less drastic alternatives and 3 || concludes that dismissal without prejudice is appropriate. 4 Accordingly, IT IS HEREBY RECOMMENDED THAT this action be DISMISSED 5 || WITHOUT PREJUDICE. 6 These findings and recommendations are submitted to the United States District Judge 7 || assigned to this case, pursuant to the provisions of

(b)(1). Within fourteen (14) 8 | days after being served with these findings and recommendations, Plaintiff may file written 9 || objections with the court. Such document should be captioned “Objections to Magistrate Judge’s 10 | Findings and Recommendations.” Local Rule 304(d). Plaintiff is advised that failure to file 11 | objections within the specified time may waive the right to appeal the District Court’s order. 12 | Martinez v. Yist,

(9th Cir. 1991). 13 SO ORDERED. 14 | DATED: June 13, 2025 ° □□ 16 SEAN C. RIORDAN 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28