(PC) Joyce v. Sherman ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STEVEN LEON JOYCE, ) Case No.: 1:20-cv-01324-SAB (PC) ) 12 Plaintiff, ) ) ORDER DIRECTING CLERK OF COURT TO 13 v. ) RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION 14 STEWART SHERMAN, et al., ) ) FINDINGS AND RECOMMENDATIONS 15 Defendants. ) RECOMMENDING DISMISSAL OF ACTION ) FOR FAILURE TO STATE COMPLY WITH A 16 ) COURT ORDER, FAILURE TO PROSECUTE, ) AND FAILURE TO STATE A COGNIZABLE 17 ) CLAIM FOR RELIEF ) 18 ) (ECF No. 18) 19 ) 20 Plaintiff Steven Leon Joyce is proceeding pro se and in forma pauepris in this civil rights 21 action pursuant to 42 U.S.C. § 1983. 22 Plaintiff filed the instant action on September 16, 2020. On October 5, 2020, the Court 23 screened Plaintiff’s complaint, found no cognizable claims, and granted Plaintiff thirty days to file an 24 amended complaint. (ECF No. 8.) Plaintiff failed to file an amended complaint or otherwise respond 25 to the Court’s order. On October 30, 2020, Plaintiff filed an amended complaint. (ECF No. 12.) On 26 November 16, 2020, the Court screened the amended complaint, again found not cognizable claim, 27 and granted Plaintiff one final opportunity to amend the complaint. (ECF No. 13.) Plaintiff failed to 28 file a second amended complaint or otherwise respond to the Court’s November 16, 2020 order. On 1 February 25, 2021, the Court ordered Plaintiff to show cause within fourteen days why the action 2 should not be dismissed. (ECF No. 18.) Plaintiff failed to respond to the Court’s February 25, 2021 3 order and the time to do has now passed. 4 I. 5 SCREENING REQUIREMENT 6 The Court is required to screen complaints brought by prisoners seeking relief against a 7 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 8 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 9 “frivolous or malicious,” that “fail[] to state a claim on which relief may be granted,” or that “seek[] 10 monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). 11 A complaint must contain “a short and plain statement of the claim showing that the pleader is 12 entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but 13 “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 14 do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 15 550 U.S. 544, 555 (2007)). Moreover, Plaintiff must demonstrate that each defendant personally 16 participated in the deprivation of Plaintiff’s rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 17 2002). 18 Prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally 19 construed and to have any doubt resolved in their favor. Wilhelm v. Rotman, 680 F.3d 1113, 1121 20 (9th Cir. 2012) (citations omitted). To survive screening, Plaintiff’s claims must be facially plausible, 21 which requires sufficient factual detail to allow the Court to reasonably infer that each named 22 defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 23 572 F.3d 962, 969 (9th Cir. 2009). The “sheer possibility that a defendant has acted unlawfully” is not 24 sufficient, and “facts that are ‘merely consistent with’ a defendant’s liability” falls short of satisfying 25 the plausibility standard. Iqbal, 556 U.S. at 678; Moss, 572 F.3d at 969. 26 /// 27 /// 28 /// 1 II. 2 SUMMARY OF ALLEGATIONS 3 From mid-April to May 13, 2019, Defendants Doctor Kokor and Registered Nurse Powell 4 delayed sending Plaintiff to the Adventist Health Hospital in Bakersfield, California in order for 5 Plaintiff to recover appropriately. 6 G. Fajardo, Clarence Cryer, and S. Gates reviewed and denied Plaintiff’s healthcare appeal. 7 On January 29, 2019, Doctor Kokor noted that Plaintiff was placed into the HIV- 8 anticoagulation status. (Am. Compl., Ex. A-1.) Registered Nurse Sarah noted that Plaintiff was 9 scheduled for cystoscopy and transrectal ultrasonography of the prostate with multiple biopsies. (Id.) 10 On March 18, 2019, Doctor Kokor noted that had elevated PSA and a family history of 11 prostate CA. “The urinary bladder exhibits a post void residual bladder volume of 68 cc which is 12 abnormal. IMPRESSION: Prostatomegaly with urinary retention.” (Id., Ex. A-2.) 13 On April 10, 2019, Doctor Kokor ordered a Microalb RAM urine test which revealed 14 abnormalities in Albumin excretion. (Id., Exs. A-3, A-4.) 15 On April 24, 2019, Plaintiff filed a health care services request form informing medical staff 16 that he had been coughing for three days and had symptoms of a cold. Plaintiff requested cold 17 medication, but on April 30, 2019, Doctor Kokor had Chinyere-Nyenke add notations that Tylenol, 18 Ibuprofen, and Nortriptyline had failed to help Plaintiff. (Id., Ex. A-6.) 19 On April 29, 2019, Doctor Kokor extended Plaintiff’s HIV anticoagulation treatment placing a 20 completion date of July 28, 2019. 21 On May 1, 2019, Doctor Kokor conducted an x-ray of Plaintiff’s right hip and found mild 22 degenerative bone mineralization defect. On May 2, 2019, Doctor Kokor examined Plaintiff’s chest 23 by way of x-ray, and the frontal and lateral chest radiographs found small left lung 24 connolidation/pneumonia:hyperinflation. Follow-up x-rays were recommended for resolution, and 25 another blood specimen was collected from Plaintiff to test for coccoidal antibodies. (Id., Exs. A-8, 26 A-9, A-10.) 27 /// 28 /// 1 On May 2, 2019, Plaintiff informed Registered Nurse that his cough was back and he was 2 having shortness of breath while laying in bed. Plaintiff was transported to the Hospital in 3 Bakersfield. (Id., Ex. A-11.) 4 The stool specimens collected from Plaintiff on March 12, 2019, and the blood specimen 5 collected on May 2, 2019, were returned on May 3, 2019 showing negative semi-quantitative 6 assessment for coccoid antibodies. (Id., Ex. A-9.) 7 Doctor Kokor was temporarily replaced by Doctor Julius Metts who obtained a blood 8 specimen from Plaintiff on May 3, 2019, and chose to use the same Quest Diagnostic Lab in West 9 Hills that Doctor Kokor used to test for coccidioidomycosis antibodies “which speaks of its 10 inac[c]uracy.” (Am. Compl. at 7, Exs. A-13, A-14.) 11 On May 6, 2019, Plaintiff submitted another health care services request form informing 12 Registered Nurse Powell that his breathing had gotten worse, he had not slept in two weeks, and the 13 medication was not working. (Id., Ex. A-15, A-18.) 14 On May 10, 2019, Doctor Nyenke noted that Plaintiff had an obstructed symptom that had not 15 been relieved on the treatment, yet Plaintiff was back in his cell on the yard “fighting his way through 16 the morbid sore throat, and inability to breathe, writing yet another Health Care Service Request slip to 17 RN Powell, saying he was out of medication and needed badly to be seen.” (Am. Compl. at 8, Ex. A.- 18 18.) 19 On May 13, 2019, Doctor Kokor sent Plaintiff to the Adventist Health Hospital for five days in 20 order to receive a breathing treatment that was not available at California Substance Abuse and 21 Treatment Facility and State Prison, Corcoran. (Id., Ex. A-19.) 22 The hospital produced Plaintiff’s active diagnosis as Valley Fever (pulmonary 23 coccidioidomycosis, bilateral pneumonia, reactive IgG and IgM, and sepsis which was present on 24 admission. 25 Doctor Kokor and Registered Nurse Powell’s failure to turn Plaintiff over to a higher level of 26 care and to leave him in an adequate recovery center until he healed constitutes criminal negligence. 27 (Id., Exs, A-20, A-21, A-22.) 28 1 Plaintiff contends Doctor Kokor failed to properly supervise Registered Nurse Powell to ensure 2 that he was referred to a doctor prior to his deterioration and resulting diagnosis. 3 On August 2, 2019, healthcare appeals registered nurse G. Fajardo interviewed Plaintiff and 4 reviewed documentation which noted negative test results for coccidioidomycosis, and the inability to 5 diagnose Plaintiff’s condition was known to Doctor Kokor and Registered Nurse Powell. However, 6 Plaintiff suffered from mid-April to May 13, 2019, with the pneumonia, reactive IgG and IgM, and 7 Sepsis POA. Therefore, appeals reviewers G. Fajardo, Clarence Cryer and S. Gates are responsible for 8 the denial of Plaintiff’s adequate medical treatment and violated California Penal Code section 2652. 9 Plaintiff’s appeal was denied. 10 Chief Executive Officer Clarence Cryer reviewed the decision by Fajardo and had the authority 11 to correct the malpractice of Defendants, but he failed to do so. 12 On November 7, 2019, Policy Risk and Management Officer S. Gates denied Plaintiff’s health 13 care appeal at the final level of review. 14 III. 15 DISCUSSION 16 A. Deliberate Indifference to Serious Medical Need 17 A prisoner’s claim of inadequate medical care does not constitute cruel and unusual punishment 18 in violation of the Eighth Amendment unless the mistreatment rises to the level of “deliberate 19 indifference to serious medical needs.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (quoting 20 Estelle v. Gamble, 429 U.S. 97, 104 (1976)). The two-part test for deliberate indifference requires 21 Plaintiff to show (1) “a ‘serious medical need’ by demonstrating that failure to treat a prisoner’s 22 condition could result in further significant injury or the ‘unnecessary and wanton infliction of pain,’” 23 and (2) “the defendant’s response to the need was deliberately indifferent.” Jett, 439 F.3d at 1096. A 24 defendant does not act in a deliberately indifferent manner unless the defendant “knows of and 25 disregards an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). 26 “Deliberate indifference is a high legal standard,” Simmons, 609 F.3d at 1019; Toguchi v. Chung, 391 27 F.3d 1051, 1060 (9th Cir. 2004), and is shown where there was “a purposeful act or failure to respond 28 to a prisoner’s pain or possible medical need” and the indifference caused harm. Jett, 439 F.3d at 1096. 1 Negligence or medical malpractice do not rise to the level of deliberate indifference. Broughton 2 v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citing Estelle, 429 U.S. at 105-106). “[A] 3 complaint that a physician has been negligent in diagnosing or treating a medical condition does not 4 state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does 5 not become a constitutional violation merely because the victim is a prisoner.” Estelle, 429 U.S. at 106; 6 see also Anderson v. County of Kern, 45 F.3d 1310, 1316 (9th Cir. 1995). Even gross negligence is 7 insufficient to establish deliberate indifference to serious medical needs. See Wood v. Housewright, 8 900 F.2d 1332, 1334 (9th Cir. 1990). Additionally, a prisoner’s mere disagreement with diagnosis or 9 treatment does not support a claim of deliberate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th 10 Cir. 1989). 11 Further, a “difference of opinion between a physician and the prisoner—or between medical 12 professionals—concerning what medical care is appropriate does not amount to deliberate indifference.” 13 Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v. Vild, 891 F.2d at 242, overruled 14 in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082–83 (9th Cir. 2014); Wilhelm v. Rotman, 15 680 F.3d 1113, 1122–23 (9th Cir. 2012) (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1986)). 16 Rather, Plaintiff “must show that the course of treatment the doctors chose was medically unacceptable 17 under the circumstances and that the defendants chose this course in conscious disregard of an excessive 18 risk to [his] health.” Snow, 681 F.3d at 988 (citing Jackson, 90 F.3d at 332) (internal quotation marks 19 omitted). 20 Plaintiff fails to state a cognizable claim for relief under the Eighth Amendment. Plaintiff 21 contends that Doctor Kokor and Registered Nurse Powell delayed in sending him to the hospital. 22 Even if Plaintiff had attributed, or could attribute any delay to Doctor Kokor and/or Registered 23 Nurse Powell, delay, alone, does not constitute deliberate indifference. See Hallett v. Morgan, 296 24 F.3d 732, 745-46 (9th Cir. 2002) (to establish a claim of deliberate indifference arising from delay in 25 providing care, a plaintiff must show that the delay was harmful); see also Reyes v. Brown, No. 16- 26 CV-84 JLS (BLM), 2018 WL 1905459, at *6 (S.D. Cal. Apr. 23, 2018) (finding allegations of delay 27 between prisoner's initial treatment, follow-up, and surgical referral insufficient to support an Eighth 28 Amendment violation). Plaintiff’s factual allegations fail to plausibly show that Doctor Kokor or 1 Registered Nurse Powell acted with deliberate indifference to Plaintiff's serious medical needs. Iqbal, 2 556 U.S. at 678. At most, Plaintiff's Complaint alleges either negligence or a difference of opinion 3 between Plaintiff and Defendants Kokor and Powell as to the testing and/or appropriate course of 4 treatment. Neither scenario, however, plausibly supports an Eighth Amendment violation. See 5 Toguchi, 391 F.3d at 1058 (“[A] mere difference of medical opinion ... [is] insufficient, as a matter of 6 law, to establish deliberate indifference.”) (internal citation omitted). Plaintiff’s simple belief that he 7 should have received a more immediate intervention and/or a different course of diagnostic or 8 treatment does not by itself give rise to an Eighth Amendment claim. See Vaught v. Miranda, CIV S- 9 10-1108 DAD P, 2012 WL 525573, at *11 (E.D. Cal. Feb. 16, 2012), aff'd, 502 Fed. Appx. 709 (9th 10 Cir. 2013) (“Plaintiff's belief that he should have received a MRI is no more than a difference of 11 opinions between plaintiff and the defendants who provided and/or reviewed his medical treatment.”); 12 Estelle, 429 U.S. at 107 (“A medical decision not to order an X-ray, or like measures, does not 13 represent cruel and unusual punishment.”); Lively v. Tovar, 11cv153-LAB (MDD), 2012 WL 838483, 14 at *5 (S.D. Cal. Feb. 14, 2012) (“Even if [p]laintiff's self-diagnosis were correct, this would not 15 amount to deliberate indifference.”). Accordingly, Plaintiff fails to state a cognizable claim for 16 deliberate indifference. 17 B. Review of Health Care Inmate Appeals 18 There is no vicarious liability for civil rights violations. Ashcroft v. Iqbal, 556 U.S. at 676-77; 19 Jones v. Williams, 297 F.3d at 934; Peralta v. Dillard, 744 F.3d 1076, 1085-86 (9th Cir. 2014). In 20 addition, the Due Process Clause protects persons against deprivations of life, liberty, or property; and 21 those who seek to invoke its procedural protection must establish that one of these interests is at 22 stake.” Wilkinson v. Austin, 545 U.S. at 221. Plaintiff does not a have protected liberty interest in the 23 processing his appeals, and therefore, he cannot pursue a claim for denial of due process with respect 24 to the handling or resolution of his appeals. Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) 25 (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)). Similarly, Plaintiff may not impose 26 liability on a defendant simply because he or she played a role in processing or responding to 27 Plaintiff’s inmate appeals. See Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) (because an 28 administrative appeal process is only a procedural rights, no substantive right is conferred, no due 1 process protections arise, and the “failure to process any of Buckley’s grievances, without more, is not 2 actionable under section 1983.”); Dragasits v. Yu, No. 16-CV-1998 BEN (JLB), 2017 WL 3141802, at 3 *14 (S.D. Cal. July 24, 2017) (collecting cases relying on Ramirez v. Galaza, 334 F.3d 850 to hold 4 that a “prison official’s mere administrative review of a prisoner’s health care appeal cannot serve as 5 the basis of the official’s liability under § 1983”); Bell v. California Dep't of Corr. & Rehab., No. 14- 6 CV-1397-BEN-PCL, 2016 WL 8736865, at *7 (S.D. Cal. Mar. 29, 2016) (finding that because 7 plaintiff’s complaint only involved defendants' roles in administrative review of his inmate appeals, 8 their actions did “not create liability under § 1983”). Thus, in general, denying a prisoner's 9 administrative grievance does not cause or contribute to the underlying violation. George v. Smith, 10 507 F.3d 605, 609 (7th Cir. 2007); Hernandez v. Cate, 918 F.Supp.2d 987, 1018 (C.D. Cal. 2013). 11 However, if an appellate reviewer denies an appeal of an ongoing medical issue it may subject 12 him/her to liability for deliberate indifference under the Eighth Amendment. Jett v. Penner, 439 F.3d 13 1091, 1098 (9th Cir. 2006). Nonetheless, if the prison official merely signed off on an appeal of a 14 discrete medical issue, such an allegation does not, by itself, constitute deliberate indifference. See 15 Peralta v. Dillard, 744 F.3d at 1086-87 (finding no liability for a prison official who reviewed 16 plaintiff's inmate appeal, even though the official was a supervisor of dental staff, this official did not 17 independently review plaintiff's claims or read plaintiff's medical charts before signing off on 18 plaintiff's second-level review). 19 As an initial matter, Plaintiff has failed to demonstrate that either Doctor Kokor or Registered 20 Nurse Powell were deliberately indifferent to his medical needs, and by extension neither Defendants 21 Fajardo, Cryer, and/or Gates can be liable for denying an inmate appeal about the issue. Further, 22 Plaintiff has not pled that Defendants provided direct medical care to him or saw him for treatment. In 23 addition, Plaintiff has not alleged that Defendants Cryer and Gates were personally involved in any 24 decisions about the appropriate course of Plaintiff’s treatment. Thus, Plaintiff has failed to 25 demonstrate, how Defendants participated in, knew of, or reasonably should have known of any 26 constitutional injury. See Farmer v. Brennan, 511 U.S. at 837 (to be liable for a claim of deliberate 27 indifference, “the official must both be aware of facts from which the inference could be drawn that a 28 1 substantial risk of serious harm exists, and he must also draw the inference”); Gibson v. Cnty. of 2 Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002) (even if a prison official should have been aware of the 3 risk, if he “was not, then [he] has not violated the Eighth Amendment, no matter how severe the risk”), 4 overruled on other grounds by Castro v. Cnty. of Los Angeles, 833 F.3d 1060 (9th Cir. 2016). 5 Accordingly, Plaintiff fails to state a cognizable claim against Defendants Fajardo, Cryer, and Gates. 6 C. Violation of California Penal Code 7 Plaintiff alleges that Defendants violated California Penal Code Sections 2652. However, 8 criminal statutes do not generally provide a private cause of action or a basis for civil liability. See 9 Ellis v. City of San Diego, 176 F.3d 1183, 1189 (9th Cir. 1999) (concluding that the District Court 10 properly dismissed claims premised on violations of the California Penal Code because they did not 11 create enforceable individual rights). The Court has reviewed the criminal statutes in question and 12 finds that Plaintiff cannot sue for damages under California Penal Code Section 2652. See Lopez v. 13 Cate, No. 1:10–cv–01773–AWI–SKO PC, 2013 WL 239097, at p. *12 (E.D. Cal. Jan. 22, 2013) 14 (inmate cannot maintain claims for violation of Penal Code Sections 2650 through 2653 as there is no 15 private right of action therein); Johnson v. Reddy, No. 2:12–cv–1843 KJN P, 2013 WL 3070624, at p. 16 *2 (E.D. Cal. June 17, 2013) (finding that civil enforcement was unavailable to the plaintiff based on 17 alleged violations of Penal Code Sections 2650 and 2652). 18 IV. 19 FAILURE TO OBEY COURT ORDER AND FAILURE TO PROSECUTE 20 Here, the Court screened Plaintiff’s first amended complaint, and on November 16, 2020, an 21 order issued providing Plaintiff with the legal standards that applied to his claims, advising him of the 22 deficiencies that needed to be corrected, and granting him leave to file an amended complaint within 23 thirty days. (ECF No. 13.) Plaintiff did not file a second amended complaint. Therefore, on February 24 25, 2021, the Court ordered Plaintiff to show cause within fourteen (14) days why the action should not 25 be dismissed. (ECF No. 18.) Plaintiff failed to respond to the February 21, 2021 order. 26 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules or 27 with any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 28 within the inherent power of the Court.” The Court has the inherent power to control its docket and 1 may, in the exercise of that power, impose sanctions where appropriate, including dismissal of the 2 action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000). 3 A court may dismiss an action based on a party’s failure to prosecute an action, failure to obey 4 a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 52, 53-54 (9th 5 Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 6 (9th Cir. 1992) (dismissal for failure to comply with an order to file an amended complaint); Carey v. 7 King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring 8 pro se plaintiffs to keep court apprised of address); Malone v. United States Postal Serv., 833 F.2d 128, 9 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 10 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local rules). 11 “In determining whether to dismiss an action for lack of prosecution, the district court is required 12 to consider several factors: ‘(1) the public’s interest in expeditious resolution of litigation; (2) the court’s 13 need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 14 disposition of cases on their merits; and (5) the availability of less drastic sanctions.’ ” Carey, 856 F.2d 15 at 1440 (quoting Henderson, 779 F.2d at 1423). These factors guide a court in deciding what to do, and 16 are not conditions that must be met in order for a court to take action. In re Phenylpropanolamine (PPA) 17 Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (citation omitted). 18 In this instance, the public’s interest in expeditious resolution of the litigation and the Court’s 19 need to manage its docket weigh in favor of dismissal. In re Phenylpropanolamine (PPA) Products 20 Liability Litigation, 460 F.3d at 1226. Plaintiff was ordered to file an amended complaint within thirty 21 days of November 16, 2020 and has not done so. Accordingly, the operative pleading is the October 22 30, 2020 first amended complaint which has been found not to state a cognizable claim. Plaintiff’s 23 failure to comply with the order of the Court by filing an amended complaint hinders the Court’s ability 24 to move this action towards disposition. This action can proceed no further without Plaintiff’s 25 compliance with the order and his failure to comply indicates that Plaintiff does not intend to diligently 26 litigate this action. 27 Since it appears that Plaintiff does not intend to litigate this action diligently there arises a 28 rebuttable presumption of prejudice to the defendants in this action. In re Eisen, 31 F.3d 1447, 1452-53 1 (9th Cir. 1994). The risk of prejudice to the defendants also weighs in favor of dismissal. 2 The public policy in favor of deciding cases on their merits is greatly outweighed by the factors 3 in favor of dismissal. It is Plaintiff’s responsibility to move this action forward. In order for this action 4 to proceed, Plaintiff is required to file an amended complaint curing the deficiencies in the operative 5 pleading. Despite being ordered to do so, Plaintiff did not file an amended complaint or respond to the 6 order to show cause and this action cannot simply remain idle on the Court’s docket, unprosecuted. In 7 this instance, the fourth factor does not outweigh Plaintiff’s failure to comply with the Court’s orders. 8 Finally, a court’s warning to a party that their failure to obey the court’s order will result in 9 dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 10 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The Court’s November 16, 2020 order requiring 11 Plaintiff to file an amended complaint expressly stated: “If Plaintiff fails to file an amended complaint 12 in compliance with this order, the Court will recommend to a district judge that this action be 13 dismissed consistent with the reasons stated in this order.” (ECF No. 13.) In addition, the Court’s 14 February 25, 2021, order specifically stated: “ Plaintiff shall show cause why this action should not be 15 dismissed for failure to state a cognizable claim, failure to comply with a court order, and failure to 16 prosecute. Failure to comply with this order will result a recommendation to dismiss the action.” 17 (ECF No. 18.) Thus, Plaintiff had adequate warning that dismissal would result from his 18 noncompliance with the Court’s order. 19 V. 20 CONCLUSION AND RECOMMENDATION 21 The Court has screened Plaintiff’s complaint and found that it fails to state a cognizable claim. 22 Plaintiff has failed to comply with the Court’s order to file an amended complaint or respond to the 23 Court’s order to show why the action should not be dismissed. In considering the factors to determine 24 if this action should be dismissed, the Court finds that this action should be dismissed for Plaintiff’s 25 failure to state a cognizable claim, failure to obey the November 16, 2020 and February 21, 2021 orders, 26 and failure to prosecute this action. 27 Accordingly, it is HEREBY ORDERED that the Clerk of Court is directed to randomly assign a 28 Fresno District Judge to this action. 1 Further, it is HEREBY RECOMMENDED that this action be DISMISSED for Plaintiff’s failu 2 || to state a claim, failure to comply with a court order, and failure to prosecute. 3 This Findings and Recommendation is submitted to the district judge assigned to this actio 4 || pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen (14) days □ 5 service of this Recommendation, Plaintiff may file written objections to this findings ar 6 recommendation with the Court. Such a document should be captioned “Objections to Magistra 7 || Judge’s Findings and Recommendation.” The district judge will review the magistrate judge’s Findin; 8 || and Recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to fi 9 || objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheels 10 || 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 11 12 ||IT IS SO ORDERED. A (Fe _ 13 |! Dated: _March 22, 2021 OF 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12