1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 MICHAEL THOMAS, Case No. 1:24-cv-00510-CDB (PC)

9 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION WITHOUT 10 v. PREJUDICE FOR PLAINTIFF’S FAILURE TO PROSECUTE AND TO OBEY COURT 11 ESCOBEDO, et al., ORDERS AND LOCAL RULES

12 Defendants. (Doc. 10)

13 14-DAY OBJECTION PERIOD

14 Clerk of the Court to Assign District Judge

15 16 Plaintiff Michael Thomas (“Plaintiff”) is a state prisoner proceeding pro se and in forma 17 pauperis in this civil rights action brought under

. Plaintiff initiated this action 18 with the filing of a complaint on April 29, 2024. (Doc. 1). On December 13, 2024, the Court 19 granted Plaintiff’s motion for leave to file a first amended complaint (“FAC”) and directed the 20 Clerk of the Court to file Plaintiff’s FAC, lodged on December 10, 2024 (Doc. 7), on the docket as 21 his operative pleading. (Doc. 8). 22 On October 24, 2025, the Court entered the first screening order, finding the FAC 23 adequately pleads a cognizable claim under the Eighth Amendment for deliberate indifference to 24 serious medical needs against Defendants Kern Valley State Prison (“KVSP”) correctional officers 25 Escobedo and Sargent (“Defendants”) but fails to state official capacity claims and a proper request 26 for injunctive relief, and fails to state a claim under the First and Fourteenth Amendments, under 27 the ADA, and under Section 504 of the RA. (Doc. 10 at 19). Because the Court found that Plaintiff 1 amend his complaint.

. Plaintiff was directed within 21 days from entry of the order to 2 file either a second amended complaint (“SAC”) curing the deficiencies identified in the first 3 screening order, a notice indicating his intent to stand on the FAC which will prompt the 4 undersigned to recommend dismissal of his deficient claims, or a notice of voluntary dismissal.

5 at 20. Plaintiff was forewarned that “[a]ny failure by Plaintiff to timely comply with this order 6 will result in a recommendation that this action be dismissed, without prejudice, for failure 7 to obey a court order and for failure to prosecute.”

(emphasis original). 8 Following service upon Plaintiff, on October 27, 2025, Plaintiff filed a notice of change of 9 address and the first screening order was re-served upon Plaintiff by mail that same day. (Doc. 11); 10 see Dkt. 10/27/2025. On December 5, 2025, Plaintiff filed a document purporting to resubmit his 11 notice of change of address, of a “motion to stay case pending resolution of transfers[,]” and a 12 “declaration in support thereof[] and explanation for delay.” (Doc. 12). Plaintiff represents that 13 the document attached to the filing as “Ex. A” was originally provided to prison officials for mailing 14 on November 13, 2025, but was returned to Plaintiff on November 25, 2025, due to an incorrect 15 address, and he refers to an attachment entitled “Ex. B” which is a legal mail acknowledgement for 16 incoming mail.

. He represents that “Ex. A” represents the correct address for mailing, 17 which he has successfully used “for years” and thus he assumes that the mail was returned by 18 mistake.

. Plaintiff therefore resubmits the attached documents and asks the Court to forgive 19 any perceived delay caused by the mistaken returned mail “which was beyond Plaintiff’s control.” 20

The filing is dated and signed November 25, 2025.

21 In fact, Plaintiff’s filing does not include any motion to stay the case pending resolution of 22 transfer, no declaration in support thereof, nor any “explanation of delay” despite the captioned 23 document representing such was included. Moreover, Plaintiff’s filing does not comply with or 24 otherwise address the Court’s first screening order that was re-served upon him on October 27, 25 2025. The time to comply with the first screening order from the date of its re-service upon Plaintiff 26 has passed (i.e., November 17, 2025), and Plaintiff failed to file either a SAC, a notice of his intent 27 to stand on the FAC, or a notice of voluntary dismissal. Accordingly, the undersigned issues the 1 Plaintiff’s failure to obey a court order and to prosecute this action. 2 Governing Authority 3 Local Rule 110, corresponding with Federal Rule of Civil Procedure 11, provides that 4 “[f]ailure of counsel or of a party to comply with these Rules or with any order of the Court may 5 be grounds for imposition by the Court of any and all sanctions . . . within the inherent power of 6 the Court.” E.D. Cal. Local Rule 110. The Court has the inherent power to control its docket and 7 may, in the exercise of that power, impose sanctions where appropriate, including dismissal of the 8 action. Bautista v. Los Angeles Cnty.,

, 841 (9th Cir. 2000). A court may dismiss an 9 action based on a party’s failure to prosecute an action, obey a court order, or comply with local 10 rules. See, e.g., Ferdik v. Bonzelet,

(9th Cir. 1992) (dismissal for failure 11 to comply with a court order to amend a complaint); Malone v. U.S. Postal Service,

, 12 130-31 (9th Cir. 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 13

, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local 14 rules). 15 Local Rule 182(f) provides that a “pro se party is under a continuing duty to notify the Clerk 16 and all other parties of any change of address …. Absent such notice, service of documents at the 17 prior address of the … pro se party shall be fully effective.” Local Rule 182(f). Further, Local 18 Rule 183(b) states that a “party appearing in propria persona shall keep the Court and opposing 19 parties advised as to his or her current address. If mail directed to a plaintiff in propria persona by 20 the Clerk is returned by the U.S. Postal Service, and if such plaintiff fails to notify the Court and 21 opposing parties within thirty (30) days thereafter of a current address, the Court may dismiss the 22 action without prejudice for failure to prosecute.” Local Rule 183(b) (emphasis omitted). 23 “In determining whether to dismiss an action for lack of prosecution, the district court is 24 required to weigh several factors: (1) the public’s interest in expeditious resolution of litigation; (2) 25 the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 26 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 27 sanctions.” Carey v. King,

(9th Cir. 1988) (internal quotation marks & 1 must be met in order for a court to take action. In re Phenylpropanolamine (PPA) Products 2 Liability Litigation,

(9th Cir. 2006) (citation omitted). 3 Discussion 4 Here, Plaintiff has failed to file a response to the Court’s first screening order granting him 5 leave to file either a SAC, a notice of his intent to stand on the FAC, or a notice of voluntary 6 dismissal, and otherwise has failed to timely request any extension of the deadline to comply with 7 the order, and the time to do so has passed. Plaintiff therefore has failed to comply with the Court’s 8 orders and Local Rules. 9 Given the Court’s re-service of the first screening order on October 27, 2025, making the 10 time for Plaintiff to comply due by November 17, 2025, and Plaintiff’s failure to file any response 11 in compliance with the order, there are no other reasonable alternatives available to address 12 Plaintiff’s failure to obey the Local Rules and failure to prosecute. Thus, the first and second 13 factors — the expeditious resolution of litigation and the Court’s need to manage its docket — 14 weigh in favor of dismissal. Carey,

. 15 The third factor, risk of prejudice to Defendants, also weighs fairly in favor of dismissal 16 since a presumption of injury arises from the occurrence of unreasonable delay in prosecuting an 17 action. See Anderson v. Air W.,

(9th Cir. 1976). This matter cannot proceed 18 further without Plaintiff’s participation to prosecute the case and file a SAC curing the deficiencies 19 identified in the first screening order, a notice to stand on his FAC, or file a notice of voluntary 20 dismissal pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i) if he no longer wishes to 21 pursue this action. The presumption of injury holds given Plaintiff’s unreasonable delay in 22 prosecuting this action. Thus, the third factor—a risk of prejudice to the Defendants—also weighs 23 in favor of dismissal. Carey,

. 24 The fourth factor usually weighs against dismissal because public policy favors disposition 25 on the merits. Pagtalunan v. Galaza,

(9th Cir. 2002). However, “this factor 26 lends little support to a party whose responsibility it is to move a case toward disposition on the 27 merits but whose conduct impedes progress in that direction.” In re PPA,

. 1 to comply with this Court’s orders and the Local Rules and, thus, is impeding the progress of this 2 action. More than 40 days have passed since the first screening order was re-serviced upon 3 Plaintiff, yet Plaintiff has failed to file a response in compliance with the order. Therefore, the 4 fourth factor—the public policy favoring disposition of cases on their merits—also weighs in favor 5 of dismissal. Carey,

. 6 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 7 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik,

. 8 Here, the Court’s order granting Plaintiff leave to amend and requiring a response from Plaintiff 9 cautioned: “Any failure by Plaintiff to timely comply with this order will result in a 10 recommendation that this action be dismissed, without prejudice, for failure to obey a court 11 order and for failure to prosecute.” (Doc. 10 at 20) (emphasis original). Plaintiff was adequately 12 forewarned that the failure to timely file either a SAC, a notice to stand on his FAC, or a notice of 13 voluntary dismissal would result in terminating sanctions. The undersigned finds Plaintiff had 14 adequate warning that dismissal could result from his noncompliance with this Court’s Local Rules. 15 Thus, the fifth factor — the availability of less drastic sanctions —weighs in favor of dismissal. 16 Ferdik,

; Carey,

. 17 In sum, Plaintiff has failed to comply with this Court’s order and the Local Rules, and in 18 doing so, has failed to prosecute this action. Having weighed the equities and considered the 19 relevant factors noted above, the undersigned concludes that dismissal of the action is warranted. 20 21 22 Remainder of This Page Intentionally Left Blank

23 24 25 26 27 1 Conclusion, Order, and Recommendation 2 For the foregoing reasons, the Court DIRECTS the Clerk of the Court to assign a district 3 | judge to this action and RECOMMENDS that: 4 1. The Court DISMISS this action without prejudice for Plaintiffs failure to obey the Court’s 5 orders and Local Rules and for failure to prosecute this action. 6 2. The Clerk of the Court be DIRECTED to close this case. 7 These Findings and Recommendations will be submitted to the United States District Judge 8 || assigned to this case, pursuant to the provisions of

(b)(). Within 14 days after 9 | being served with a copy of these Findings and Recommendations, a party may file written 10 | objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to 11 | Magistrate Judge’s Findings and Recommendations” and shall not exceed 15 pages without leave 12 | of Court and good cause shown. The Court will not consider exhibits attached to the Objections, 13 | but a party may refer to exhibits in the record by CM/ECF document and page number. Any pages 14 | filed in excess of the 15-page limitation may be disregarded by the District Judge when reviewing 15 | these Findings and Recommendations under

(b)(I)(C). A party’s failure to file any 16 | objections within the specified time may result in the waiver of certain rights on appeal. Wilkerson 17 | v. Wheeler,

(9th Cir. 2014). 18 | IT IS SO ORDERED. 19 Dated: _ December 11, 2025 | hr 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28