# Allison

> District Court, E.D. California · May 6, 2026

URL: https://www.frixlaw.com/law-library/cases/11382242

## Case

- **Full name:** Edward Harry Constable v. Kathleen Allison, et al.
- **Court:** District Court, E.D. California
- **Decided:** May 6, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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8 UNITED STATES DISTRICT COURT
9 EASTERN DISTRICT OF CALIFORNIA
10
11 EDWARD HARRY CONSTABLE, Case No.: 1:25-cv-00591-EGC (PC)
12 Plaintiff, FINDINGS AND RECOMMENDATIONS
TO DISMISS ACTION WITHOUT
13 v. PREJUDICE FOR PLAINTIFF’S FAILURE
TO STATE A CLAIM, FAILURE TO
14 KATHLEEN ALLISON, et al., COMPLY, AND FAILURE TO
PROSECUTE
15 Defendants.
14-Day Objection Period
16
Clerk of the Court to Assign District Judge
17

18 Plaintiff Edward Harry Constable is appearing pro se and in forma pauperis in this civil
19 rights action pursuant to 42 U.S.C. section 1983.
20 I. RELEVANT BACKGROUND
21 Plaintiff initiated this action by filing a complaint on May 20, 2025. (Doc. 1.)
22 On June 13, 2025, Plaintiff filed a first amended complaint. (Doc. 8.)
23 On August 1, 2025, a document submitted by Plaintiff was lodged with the Court as a
24 second amended complaint. (Doc. 9.)
25 On August 4, 2025, Plaintiff filed correspondence docketed as a motion to appoint counsel
26 and notice. (Doc. 10.) The Court issued its Order Denying Plaintiff’s Motion to Appoint Counsel
27 on August 8, 2025. (Doc. 11.) In addition to denying the appointment of counsel, the Court
1 ‘complete in itself,’” that an amended complaint must be “’complete in itself without reference to
2 the prior’ complaint,” that Plaintiff should use the civil rights complaint form, and that any
3 submitted complaint was subject to screening. (Id. at 5.)
4 On January 14, 2026, the Court issued its First Screening Order based on the operative
5 first amended complaint. (Doc. 13.) Specifically, the Court found the operative complaint
6 violated Rule 8 of the Federal Rules of Civil Procedure (id. at 6-7), failed to link any defendant to
7 a constitutional violation (id. at 7), named entities entitled to immunity (id. at 8-9) and asserted
8 improper claims (id. at 10-11). Plaintiff was also provided with legal standards applicable to his
9 potential claims. (Id. at 12-13.) Because Plaintiff’s operative first amended complaint failed to
10 state a claim upon which relief could be granted, he was given leave to file a second amended
11 complaint within 21 days, curing the deficiencies identified in the screening order. (Id. at 14-15.)
12 On February 12, 2026, when more than 21 days passed without Plaintiff having filed a
13 second amended complaint, the Court issued its Order to Show Cause (OSC) Why Action Should
14 Not Be Dismissed for Failure to Obey Court Order and Failure to Prosecute. (Doc. 14.) Plaintiff
15 was directed to respond in writing within 21 days, or, alternatively, to file a second amended
16 complaint, curing the deficiencies identified in the screening order. (Id. at 3.)
17 On February 27, 2026, Plaintiff filed correspondence dated February 23, 2026, docketed
18 as a response to the OSC and a notice of change of address. (Doc. 15.)
19 On March 10, 2026, the Court issued its Order Discharging Order to Show Cause, Order
20 Directing Clerk of the Court to Serve Plaintiff With a Copy of the First Screening Order, and
21 Order Granting Extension of Time Within Which to File a Second Amended Complaint. (Doc.
22 16.) More particularly, Plaintiff was granted 30 days within which “to file a second amended
23 complaint, curing the deficiencies identified in the screening order, or a notice of voluntary
24 dismissal.” (Id. at 5.) That same date, Plaintiff filed a four-page document, dated and signed
25 February 27, 2026, also docketed as a response to the OSC. (Doc. 17.)
26 On March 12, 2026, the Court issued its Order Regarding Plaintiff’s Filing of March 18,
27 2026. (Doc. 18.) Relevant here, the Court noted that Plaintiff had “repeatedly been advised that
1 be “complete in itself without reference to the prior or superseded pleading.”’” (Id. at 3.) The
2 Court advised “Plaintiff must present the allegations regarding his claims in the second amended
3 complaint” and that it would “address only the allegations raised in the second amended
4 complaint.” (Id.) Plaintiff was ordered to file a second amended complaint, curing the
5 deficiencies previously identified in the Court’s screening order, “no later than April 9, 2026.”
6 (Id. at 3-4, emphasis in original.)
7 Thereafter, on March 20, 2026, a previous order issued in March 2026 was returned by the
8 United States Postal Service marked “Undeliverable,” “Released,” “Discharged 3/7/2026.”
9 On March 23, 2026, Plaintiff filed a notice of change of address, indicating he was no
10 longer incarcerated and providing a new address at the “Modesto Gospel Mission” at “1400
11 Yosemite [Blvd]” in Modesto, California. (Doc. 19.) The following day, the Clerk of the Court
12 re-served the March 10 and March 12 Orders to Plaintiff at his new address.
13 The April 9, 2026, deadline to file a second amended complaint has passed, and more than
14 30 days have elapsed since Plaintiff was re-served on March 24, 2026, with the orders directing
15 him to file a second amended complaint curing the deficiencies identified in the Court’s previous
16 screening order. Because Plaintiff has failed to file a second amended complaint, the undersigned
17 will recommend this action be dismissed for Plaintiff’s failure to state a claim, failure to comply
18 with orders, and failure to prosecute.
19 II. SCREENING FINDINGS
20 The Court is required to screen complaints brought by prisoners seeking relief against a
21 governmental entity or an officer or employee of a governmental entity. 28 U.S.C. § 1915A(a).
22 The Court must dismiss a complaint or portion thereof if the complaint is frivolous or malicious,
23 fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant
24 who is immune from such relief. 28 U.S.C. § 1915A(b). The Court should dismiss a complaint if
25 it lacks a cognizable legal theory or fails to allege sufficient facts to support a cognizable legal
26 theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).
27 //
1 A. Federal Rule of Civil Procedure 8(a)
2 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited
3 exceptions.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002). A complaint must contain
4 “a short and plain statement of the claims showing that the pleader is entitled to relief.” Fed. R.
5 Civ. P. 8(a)(2). “Such a statement must simply give the defendant fair notice of what the
6 plaintiff’s claim is and the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512 (internal
7 quotation marks & citation omitted).
8 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a
9 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556
10 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must
11 set forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its face.’”
12 Id. (quoting Twombly, 550 U.S. at 570). Factual allegations are accepted as true, but legal
13 conclusions are not. Id. (citing Twombly, 550 U.S. at 555).
14 The Court construes pleadings of pro se prisoners liberally and affords them the benefit of
15 any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted). However, “the
16 liberal pleading standard . . . applies only to a plaintiff’s factual allegations,” not his legal
17 theories. Neitzke v. Williams, 490 U.S. 319, 330 n.9 (1989). Furthermore, “a liberal interpretation
18 of a civil rights complaint may not supply essential elements of the claim that were not initially
19 pled,” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (internal
20 quotation marks & citation omitted), and courts “are not required to indulge unwarranted
21 inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation
22 marks & citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not
23 sufficient to state a cognizable claim, and “facts that are merely consistent with a defendant’s
24 liability” fall short. Iqbal, 556 U.S. at 678 (internal quotation marks & citation omitted).
25 B. Linkage and Causation
26 Section 1983 provides a cause of action for the violation of constitutional or other federal
27 rights by persons acting under color of state law. See 42 U.S.C. § 1983. To state a claim under
1 defendants and the deprivation alleged to have been suffered by the plaintiff. See Rizzo v. Goode,
2 423 U.S. 362, 373-75 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the
3 deprivation of a constitutional right, within the meaning of section 1983, if he does an affirmative
4 act, participates in another’s affirmative acts, or omits to perform an act which he is legal required
5 to do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740,
6 743 (9th Cir. 1978) (citation omitted).
7 C. Supervisory Liability
8 Liability may not be imposed on supervisory personnel for the actions or omissions of
9 their subordinates under the theory of respondeat superior. Iqbal, 556 U.S. at 676-77; see e.g.,
10 Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1020-21 (9th Cir. 2010) (plaintiff required to
11 adduce evidence the named supervisory defendants “themselves acted or failed to act
12 unconstitutionally, not merely that subordinate did”), overruled on other grounds by Castro v.
13 Cnty of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016); Jones v. Williams, 297 F.3d 930, 934
14 (9th Cir. 2002) (“In order for a person acting under color of state law to be liable under section
15 1983 there must be a showing of personal participation in the alleged rights deprivation: there is
16 no respondeat superior liability under section 1983”).
17 Supervisors may be held liable only if they “participated in or directed the violations, or
18 knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th
19 Cir. 1989). “The requisite causal connection may be established when an official sets in motion a
20 ‘series of acts by others which the actor knows or reasonably should know would cause others to
21 inflict’ constitutional harms.” Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009). Accord,
22 Starr v. Baca, 652 F.3d 1202, 1205-06 (9th Cir. 2011) (supervisory liability may be based on
23 inaction in the training and supervision of subordinates).
24 Supervisory liability may also exist without any personal participation if the official
25 implemented “a policy so deficient that the policy itself is a repudiation of the constitutional
26 rights and is the moving force of the constitutional violation.” Redman v. Cnty. of San Diego, 942
27 F.2d 1435, 1446 (9th Cir. 1991) (citations & quotations marks omitted), abrogated on other
1 To prove liability for an action or policy, the plaintiff “must ... demonstrate that his
2 deprivation resulted from an official policy or custom established by a ... policymaker possessed
3 with final authority to establish that policy.” Waggy v. Spokane County Washington, 594 F.3d
4 707, 713 (9th Cir.2010). When a defendant holds a supervisory position, the causal link between
5 such defendant and the claimed constitutional violation must be specifically alleged. See Fayle v.
6 Stapley, 607 F.2d 858, 862 (9th Cir. 1979). Vague and conclusory allegations concerning the
7 involvement of supervisory personnel in civil rights violations are not sufficient. See Ivey v.
8 Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).
9 D. Plaintiff’s Complaint and Its Claims
10 Plaintiff named the following individuals or entities as defendants: Kathleen Allison, the
11 Governor of California, Javier Beccera, Stanislaus County Public Defender’s Office, Correctional
12 Officer Tappan, Jeff Mcombre (Macomber), United States District Court, UC Davis Medical, San
13 Joaquin County Superior Court, and San Joaquin County District Attorney’s Office. (Doc. 8 at 1,
14 5.)
15 Although Plaintiff used a Civil Rights Complaint by a Prisoner form, the form is missing
16 at least three pages: page two concerning “B. DEFENDANTS” and “C. PREVIOUS
17 LAWSUITS,” page three concerning “D. CAUSE OF ACTION” and “CLAIM I” and any
18 information concerning Plaintiff’s “E. REQUEST FOR RELIEF.” (See Doc. 8, generally.) More
19 significantly, Plaintiff’s complaint is not signed. (Id.) Both the Federal Rules of Civil Procedure
20 and this Court’s Local Rules require that all filed pleadings, motions and papers be signed by the
21 party personally if the party is unrepresented. See Fed. R. Civ. P. 11(a); Local Rule 131(b).
22 Plaintiff’s complaint can be stricken for this deficiency, but for the reasons discussed below, the
23 operative complaint would be dismissed with leave to amend on other bases.
24 The Court noted the operative complaint includes several attachments, including a petition
25 for writ of habeas corpus filed on February 27, 2025, in the Northern District of California in case
26 number 5:25-cv-2066 PCP, titled Constable v. Mccombre (Doc. 8 at 12-19); two pages of
27 handwritten narrative (id. at 20-21); what appeared to be a “Walkenhorst’s” vendor form with
1 handwritten document referring to a criminal matter (id. at 24); a Case Disposition Notice issued
2 by the Sacramento County District Attorney’s Office dated March 13, 2024 (id. at 25); a petition
3 for writ of habeas corpus filed in the Northern District on January 28, 2025, bearing case number
4 5:25-cv-00900-VKD (PR) and titled Constable v. United States District Court (id. at 26-33); a
5 “Rights and Responsibility Statement CDCR 1858” form dated and signed by Plaintiff on
6 December 19, 2024 (id. at 34); a one-page handwritten document referring to state and federal
7 constitutional provisions, federal case law, and other statements (id. at 35); and a “Legal Status
8 Summary” bearing Plaintiff’s name and CDCR number dated December 12, 2024 (id. at 36-37).
9 In his single claim, appearing under the heading “Claim II,” Plaintiff indicated the
10 constitutional or federal civil rights violated were: “Constitutional violation Federal & State
11 Breach of Contract Stolen Computers Excessive Force Over Detention Illegal Sentencing
12 Violation of Miranda Rights Illegal Plea Bargain.” (Doc. 8 at 3.) Asked to identify the issues
13 involved, Plaintiff checked the “Excessive force by an officer” box. (Id.)
14 In the “Supporting Facts” section, Plaintiff wrote:
15 See Attached CM-010. See Attached HC 001 Titaled Edward Henry
Constable v. United States District Court Filed Jan 28, 2025 No. 25-
16 cv-00900-VKD (PR) Copy See Attached HC-001 Edward H.
Constable AKA Brittany HC v. Jeff Mccombre Copy Filed 02/27/25
17 Case No 5:25-cv-02066-PCP See This Case 1:25-cv-0591-SKO (PC)
& Corresponding Mail. In Sacramento State Prison I got hit by an
18 inmate then staff throw 3 smoke granades sprayed 2MK9 sprayers
through 2 Instantous Blast Grenades 1BG(S) & struck me in the head
19 with a colapseable baton causing seziures & unconciousousness
AFTER A EPRD EARLIST Possible Release Date of 11-1-2023
20 while in PC never Mirandized on 1-3-2023 or on sentincey day of 8-
12-2024 or at Preliminary Hearing. Refere to Court Case
21 STKCR202310986 violation of Miranda & Violation of Prop. 57
proven violation of over detention. See Case 1:25-cv-0591-SKO
22 (PC). Check written corespondens of 1 Edward Henry Constable
Dated Legal Mail 6-8-2025 Excessive Force proven by Prison yard
23 cameras OIA Investigation took place 1-3-2023 I also had a seizure
caught on video suvielence in unit camera resulting in charges being
24 Filed. See Document 1 Page 16 of 22 *@3054. Legal Status Sumary
Page 15 of 22 Illegal unconstution Stanislaus By plea Bargain 2xx
25 same case Prior People v. Vargas 2014-2024.
26 (Doc. 8 at 3.) Concerning injuries, Plaintiff wrote: “I Later was Reincarcerated had a Seizure Had
27 to have 3 Staples Put into The Back of My Skull By Being taken to Delano Adaivest Emergency
1 The previously assigned magistrate judge concluded Plaintiff’s complaint violated Rule 8
2 of the Federal Rules of Civil Procedure and failed to link any individual named Defendant to any
3 violation:
4 As noted above, a complaint must contain “a short and plain
statement of the claims showing that the pleader is entitled to relief.”
5 Fed. R. Civ. P. 8(a)(2). Plaintiff’s first amended complaint does not
contain short or plain statements of his claims. Plaintiff’s factual
6 allegations contain only sparse facts referring to the use of excessive
force (referencing smoke or blast grenades and a collapsible baton)
7 without attributing those actions to any individual. The few facts
asserted are conclusory and fail to set forth “sufficient factual matter,
8 accepted as true, to ‘state a claim that is plausible on its face.’” Iqbal,
556 U.S. at 678.
9
The first amended complaint does reference attachments and other
10 actions commenced by Plaintiff but exhibits or attachments cannot
act as a substitute for the claims asserted. See Davis v. Carlton, No.
11 2:11-cv-01100-TLN-KJN P, 2013 WL 6512903, *8 (E.D. Cal. Dec.
12, 2013) (“The Court will not comb through attached exhibits
12 seeking to determine whether a claim possibly could have been stated
where the pleading itself does not state a claim”).
13
……………………………………………………………………….
14
Next, Plaintiff makes no effort to “[d]escribe exactly what each
15 Defendant did or did not do that violated” his rights (see Doc. 8 at
3), as instructed. Despite naming multiple individuals (Kathleen
16 Allison, Javier Beccera, Correctional Officer Tappan and Jeff
Mcombre) he asserts no facts whatsoever describing what any of
17 these individuals did or did not do. To state a claim under section
1983, a “plaintiff must allege facts, not simply conclusions, that show
18 that an individual was personally involved in the deprivation of his
civil rights.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.
19 1998); see also Iqbal, 556 U.S. at 676 (“Because vicarious liability
is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that
20 each Government-official defendant, through the official's own
individual actions, has violated the Constitution”); Leer v. Murphy,
21 844 F.2d 628, 633 (9th Cir. 1988) (“The inquiry into causation must
be individualized and focus on the duties and responsibilities of each
22 individual defendant whose acts or omissions are alleged to have
caused a constitutional deprivation” (citing Rizzo v. Goode, 423 U.S.
23 362, 370-71, 375-77 (1976)).
24 (See Doc. 13 at 6-7.) She also provided Plaintiff with information concerning the entities named
25 in the operative complaint (id. at 7-9), identified improper claims (id. at 10-11), and summarized
26 her screening findings as follows:
27 In summary, Plaintiff’s first amended complaint violates Rule 8 of
the Federal Rules of Civil Procedure, is unsigned in violation of Rule
1 constitutional violation, appears to assert claims against judicial
officers and prosecutors who are absolutely immune from suit, and
2 appears to assert claims challenging the legality of his custody and
an earlier or immediate release where such claim must be brought
3 only in a writ of habeas corpus.
4 The undersigned’s review of the first amended complaint, as
currently pled, reveals a single potential constitutional claim
5 available to Plaintiff: Eighth Amendment excessive force against
Correctional Officer Tappan. Plaintiff will be granted leave to file a
6 second amended complaint to assert such a claim, assuming he can
do so in good faith. The applicable legal standards for an Eighth
7 Amendment excessive force claim are provided below. Out of an
abundance of caution, the Court will also provide the relevant
8 standards for asserting a Fourteenth Amendment due process claim.
Plaintiff should carefully review those standards and should assert
9 sufficient facts against any named defendant, clearly and succinctly
stating what happened, when it happened, and how each defendant
10 was involved. Plaintiff may not refer to attachments or exhibits to
state his claim (exhibits or attachments may give context to a claim
11 but are not a substitute for factual allegations).
12 (Id. at 11 [fn. omitted].) Moreover, Plaintiff was provided with the relevant legal standards
13 applicable to an Eighth Amendment excessive force claim and a Fourteenth Amendment due
14 process violation, as well as further notes of caution regarding amendment and complying with
15 Court orders. (Id. at 12-14.) Ultimately, because the operative complaint failed to state a claim
16 upon which relief could be granted, Plaintiff was ordered to file a second amended complaint or a
17 notice of voluntary dismissal within 21 days. (Id. at 14-15. )
18 III. DISCUSSION
19 A. Legal Standards Concerning Dismissal
20 Rule 41(b) of the Federal Rules of Civil Procedure permits courts to involuntarily dismiss
21 an action when a litigant fails to prosecute an action or fails to comply with a court order. See
22 Fed. R. Civ. P. 41(b); see also Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 (9th Cir.
23 2019) (citations omitted); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689
24 (9th Cir. 2005) (“[T]he consensus among our sister circuits, with which we agree, is that courts
25 may dismiss under Rule 41(b) sua sponte, at least under certain circumstances.”).
26 The Local Rules, corresponding with Federal Rule of Civil Procedure 11, provide,
27 “[f]ailure of counsel or of a party to comply with . . . any order of the Court may be grounds for
the imposition by the Court of any and all sanctions . . . within the inherent power of the Court.”
1 Local Rule 110. “District courts have inherent power to control their dockets” and, in exercising
2 that power, may impose sanctions, including dismissal of an action. Thompson v. Housing Auth.,
3 City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based on a
4 party’s failure to prosecute an action, obey a court order, or comply with local rules. See, e.g.,
5 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with a
6 court order to amend a complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir.
7 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421,
8 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules).
9 In determining whether to dismiss an action, the Court must consider several factors:
10 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its
11 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of
12 cases on their merits; and (5) the availability of less drastic sanctions. Henderson, 779 F.2d at
13 1423; Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988).
14 B. Analysis
15 Here, despite multiple opportunities, Plaintiff has failed to file a second amended
16 complaint, or notice of voluntary dismissal, as originally directed in the First Screening Order.
17 The screening order specifically identified the deficiencies in Plaintiff’s operative complaint,
18 provided the relevant legal standards applicable to his potentially cognizable claims, and other
19 relevant information. (See Doc. 13 at 4-14.) The Court cannot effectively manage its docket if
20 Plaintiff ignores Court orders and ceases litigating his case. Thus, the Court finds that both the
21 first and second factors—the public’s interest in expeditious resolution of litigation and the
22 Court’s need to manage its docket—weigh in favor of dismissal. Carey, 856 F.2d at 1440.
23 The third factor weighs in favor of dismissal since a presumption of injury arises from the
24 occurrence of unreasonable delay in prosecuting an action. Anderson v. Air W., 542 F.2d 522, 524
25 (9th Cir. 1976). Here, the Court’s screening order provided Plaintiff with 21 days within which to
26 file a second amended complaint (Doc. 13 at 14-15) and the Court subsequently extended the
27 deadline within which to do so (Doc. 16 at 5). Nevertheless, Plaintiff has failed to comply with
1 unreasonable delay in prosecuting this action resulting in a presumption of injury. Therefore, the
2 third factor—a risk of prejudice to defendants—also weighs in favor of dismissal. Carey, 856
3 F.2d at 1440.
4 The fourth factor usually weighs against dismissal because public policy favors
5 disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However,
6 “this factor lends little support to a party whose responsibility it is to move a case toward
7 disposition on the merits but whose conduct impedes progress in that direction.” In re
8 Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006)
9 (citation omitted). By failing to file a second amended complaint curing the deficiencies
10 identified in the screening order, Plaintiff is not moving this case forward and is impeding its
11 progress. As it stands, Plaintiff has failed to state any cognizable claim. Thus, the fourth factor—
12 the public policy favoring disposition of cases on their merits—weighs in favor of dismissal.
13 Carey, 856 F.2d at 1440.
14 Finally, the Court’s warning to a party that failure to obey the court’s orders will result in
15 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262.
16 Here, in the Court’s First Informational Order in Prisoner/Civil Detainee Civil Rights Case,
17 issued May 20, 2025, Plaintiff was advised, in relevant part: “In litigating this action, the parties
18 must comply with this Order, the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”), and the
19 Local Rules of the United States District Court, Eastern District of California (“Local Rules”), as
20 modified by this Order. Failure to so comply will be grounds for imposition of sanctions which
21 may include dismissal of the case. Local Rule 110; Fed. R. Civ. P. 41(b).” (Doc. 3 at 1.) That
22 same order advised Plaintiff that “all Court deadlines are strictly enforced.” (Id. at 5.) Further, in
23 the First Screening Order, Plaintiff was advised as follows: “If Plaintiff fails to comply with this
24 order, the Court will recommend that this action be dismissed, without prejudice, for
25 failure to obey a court order and for failure to prosecute.” (Doc. 13 at 15, emphasis in
26 original.) In the OSC, Plaintiff was advised: “WARNING: Failure to comply with this Order
27 to Show Cause (OSC) will result in a recommendation that this action be dismissed without
1 emphasis in original.) In a subsequent order, Plaintiff was again cautioned: “Plaintiff is advised
2 that a failure to comply with this Order will result in a recommendation that this action be
3 dismissed without prejudice for Plaintiff’s failure to obey court orders and failure to
4 prosecute.” (Doc. 16 at 5, emphasis in original.) And finally, on March 12, 2026, Plaintiff was
5 warned as follows: “Plaintiff is advised that a failure to comply with this Order or the
6 Court’s previous orders will result in a recommendation that this action be dismissed
7 without prejudice for Plaintiff’s failure to obey court orders and failure to prosecute.” (Doc.
8 18 at 4, emphasis in original.) Thus, Plaintiff had adequate warning that dismissal could result
9 from his noncompliance. Therefore, the fifth factor—the availability of less drastic sanctions—
10 also weighs in favor of dismissal. Carey, 856 F.2d at 1440.
11 In sum, Plaintiff has failed to comply with the Court’s orders, and in doing so, has failed
12 to prosecute this action. Additionally, because Plaintiff has not filed a second amended complaint,
13 he has failed to state a claim upon which relief can be granted. Whether Plaintiff has done so
14 intentionally or mistakenly is inconsequential. It is Plaintiff’s responsibility to comply with the
15 Court’s orders and to prosecute this action. The Court declines to expend its limited resources on
16 a case that Plaintiff has chosen to ignore.
17 IV. CONCLUSION AND RECOMMENDATIONS
18 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a
19 district judge to this action.
20 Further, for the reasons given above, the Court HEREBY RECOMMENDS that this
21 action be DISMISSED without prejudice for Plaintiff’s failure to state a claim, failure to obey
22 court orders, and failure to prosecute.
23 These Findings and Recommendations will be submitted to the United States District
24 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days
25 after being served with a copy of these Findings and Recommendations, a party may file written
26 objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to
27 Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen (15) pages
1 | the Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference
2 | the exhibit in the record by its CM/ECF document and page number, when possible, or otherwise
3 || reference the exhibit with specificity. Any pages filed in excess of the fifteen (15) page limitation
4 | may be disregarded by the District Judge when reviewing these Findings and Recommendations
5 | under 28 U.S.C. § 636(b)(1)(C). A party’s failure to file any objections within the specified time
6 || may result in the waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839
7 | (9th Cir. 2014).
8
9 IT IS SO ORDERED. .
10 | Dated: _ May 5, 2026 Cu Un. Qu |
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11382242. Public record. Not legal advice.