1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARRYL G. CLEWIES, II, No. 2:24-cv-01733-DAD-SCR 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 DEPARTMENT OF CHILD SUPPORT SERVICES, et al., 15 Defendants. 16 17 18 Plaintiff is proceeding in this matter pro se, which is referred to the undersigned pursuant 19 to Local Rule 302(c)(21) and

. Plaintiff has failed to file a first amended 20 complaint and failed to respond to the Court’s Order to Show Cause. The Court recommends that 21 the action be dismissed for failure to prosecute and failure to comply with court orders. 22 I. Background and Procedural History 23 On June 20, 2024, Plaintiff filed his complaint and a motion to proceed in forma pauperis. 24 ECF Nos. 1 & 2. Plaintiff alleges violation of the Fair Debt Collection Practices Act (“FDCA”), 25

et seq., and although the Defendants are unclear, one Defendant is the 26 Department of Child Support Services and Plaintiff’s claim appears to pertain to an obligation to 27 pay child support. ECF No. 1. 28 On July 15, 2025, this Court screened the complaint per the screening process required by 1

(e)(2) and found the complaint was deficient in that it did not comply with Rule 2 8 and failed to state a claim. ECF No. 4. The Court’s order provided in relevant part that 3 Plaintiff shall have 30 days to file an amended complaint that addresses the defects set forth in the 4 order. ECF No. 4 at 6. The Order warned that failure to comply may result in a recommendation 5 that the action be dismissed.

6 Plaintiff did not timely file a FAC, and on August 25, 2025 this Court issued an Order to 7 Show Cause (“OSC”) which directed Plaintiff to show cause within 14 days as to why the action 8 should not be dismissed for failure to file an amended complaint. ECF No. 5. The OSC 9 cautioned that failure to respond would lead to a recommendation that the action be dismissed and 10 cited to Fed. R. Civ. P. 41(b) and Local Rule 110. Plaintiff’s response was due September 8, 11 2025. No response was filed. 12 II. Analysis 13 Plaintiff did not timely file a FAC and has not responded to the Court’s OSC. Plaintiff 14 was warned that failure to respond would lead to a recommendation that the action be dismissed. 15 ECF No. 5 at 2. The Court has considered the five factors set forth in Ferdik v. Bonzelet, 963

, 1260 (9th Cir. 1992), and concludes that dismissal is appropriate. In considering 17 whether to dismiss a claim for failure to prosecute, the Court considers: 1) the public’s interest in 18 expeditious resolution of litigation; 2) the court’s need to manage its docket; 3) the risk of 19 prejudice to defendants; 4) the availability of less drastic alternatives; and 5) the public policy 20 favoring disposition of cases on their merits.

. 21 1. Public’s interest in expeditious resolution of the litigation 22 “The public’s interest in expeditious resolution of litigation always favors dismissal.” 23 Yourish v. Cal. Amplifier,

, 990 (9th Cir. 1999). This action was filed over a year 24 ago, in June 2024. Plaintiff has not made any filing in this action in over a year. This factor 25 weighs in favor of dismissal. See Pagtalunan v. Galaza,

(9th Cir. 2002) 26 (“Given Pagtalunan’s failure to pursue the case for almost four months, this factor weighs in 27 favor of dismissal.”). 28 1 2. Court’s need to manage its docket 2 In evaluating this factor, the trial court “is in the best position to determine whether the 3 delay in a particular case interferes with docket management.” Pagtalunan,

. 4 This case has been on the Court’s docket for over a year. The Court has issued a screening order 5 and an order to show cause. The Court’s need to manage its docket weighs in favor of dismissal, 6 particularly given the heavy caseload in this District. 7 3. Risk of prejudice to defendant 8 In evaluating this factor, the Court considers whether “plaintiff’s actions impaired 9 defendant’s ability to proceed to trial or threatened to interfere with the rightful decision of the 10 case.” Pagtalunan,

. Limited delays and the pendency of a lawsuit are 11 insufficient to establish prejudice.

However, “[u]nnecessary delay inherently increases the 12 risk that witnesses’ memories will fade and evidence will become stale.”

. The Court 13 finds this factor weighs slightly in favor of dismissal. 14 4. Availability of less drastic alternatives 15 The Court has considered the availability of less drastic alternatives. As detailed above, 16 the Court has previously issued an order to show cause and has cautioned Plaintiff that non- 17 compliance with the Court’s order would lead to a recommendation to dismiss the action. The 18 Court finds that lesser sanctions would be futile given Plaintiff’s lack of participation in the 19 litigation. The most severe approach would be to dismiss the action with prejudice, however the 20 Court concludes that the less drastic alternative of dismissal without prejudice is appropriate. 21 This factor weighs in favor of dismissal. 22 5. Public policy favoring disposition of cases on the merits 23 “Public policy favors disposition of cases on the merits.” Pagtalunan,

. 24 This factor generally always weighs against dismissal, and some cases have stated it “strongly 25 counsels against dismissal.” Allen v. Bayer Corp. (In re Phenylpropanolamine Prods. Liab. 26 Litig.),

(9th Cir. 2006). However, “this factor ‘lends little support’ to a party 27 whose responsibility it is to move a case toward disposition on the merits but whose conduct 28 impedes progress in that direction.”

The Court finds this factor weighs against dismissal. 1 Il. Conclusion 2 The Court recommends that dismissal is appropriate pursuant to Federal Rule of Civil 3 || Procedure 41(b) and Local Rule 110 for Plaintiff's failure to prosecute this action. 4 Accordingly, IT IS HEREBY RECOMMENDED that: 5 1. This action be dismissed without prejudice; and 6 2. The Clerk enter judgment and close this file. 7 These findings and recommendations will be submitted to the United States District Judge 8 | assigned to the case, pursuant to the provisions of

(b)(1). Within fourteen days 9 || after being served with these findings and recommendations, either party may file written 10 | objections with the court. The document should be captioned “Objections to Magistrate Judge's 11 | Findings and Recommendations.” The parties are advised that failure to file objections within the 12 | specified time may result in waiver of the right to appeal the district court’s order. Martinez v. 13 | Yist,

(9th Cir. 1991). 14 | DATED: September 29, 2025 1 mda 16 SEAN C. RIORDAN 7 UNITED STATES MAGISTRATE JUDGE

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