Marvin Louis Lowery Jr. v. City of Los Angeles ( 2021 )

1 2 3 4 5 6 7 8 9 10 11 12 13 UNITED STATES DISTRICT COURT 14 CENTRAL DISTRICT OF CALIFORNIA 15 MARVIN LOUIS LOWERY, JR., ) Case No. CV 20-11807-ODW (JPR) 16 ) Plaintiff, ) 17 ) ORDER DISMISSING ACTION FOR v. ) FAILURE TO PROSECUTE 18 ) CITY OF LOS ANGELES et ) 19 al., ) ) 20 Defendants. ) 21 22 On December 31, 2020, Defendant City of Los Angeles removed 23 this civil-rights action to this Court and shortly thereafter 24 filed an Answer to the First Amended Complaint. On January 28, 25 2021, mail the Court had sent Plaintiff at his address of record 26 was returned as undeliverable, with the notation “Return to 27 Sender — Not Deliverable as Addressed — Unable to Forward.” He 28 has not filed a change of address, nor has he communicated with 1 1 the Court in any way since his lawsuit was removed here. 2 As Plaintiff likely knows given that this will be the fourth 3 time one of his lawsuits will have been dismissed for the same 4 reason, Local Rule 41-6 provides that 5 [a] party proceeding pro se must keep the Court . . . 6 informed of the party’s current address . . . . If a 7 Court order or other mail served on a pro se plaintiff at 8 his address of record is returned by the Postal Service 9 as undeliverable and the pro se party has not filed a 10 notice of change of address within 14 days of the service 11 date of the order or other Court document, the Court may 12 dismiss the action with or without prejudice for failure 13 to prosecute. 14 Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988) (per 15 curiam), examined when it is appropriate to dismiss a plaintiff’s 16 lawsuit for failure to prosecute. See also Link v. Wabash R.R. 17 Co., 370 U.S. 626, 629–30 (1962) (“The power to invoke 18 [dismissal] is necessary in order to prevent undue delays in the 19 disposition of pending cases and to avoid congestion in the 20 calendars of the District Courts.”). 21 In deciding whether to dismiss a lawsuit for failure to 22 prosecute, a court must consider “(1) the public’s interest in 23 expeditious resolution of litigation; (2) the court’s need to 24 manage its docket; (3) the risk of prejudice to the defendants; 25 (4) the public policy favoring disposition of cases on their 26 merits[;] and (5) the availability of less drastic sanctions.” 27 Carey, 856 F.2d at 1440 (citation omitted). Unreasonable delay 28 creates a rebuttable presumption of prejudice to the defendants 2 1 that can be overcome only with an affirmative showing of just 2 cause by the plaintiff. In re Eisen, 31 F.3d 1447, 1452-53 (9th 3 Cir. 1994). 4 Here, the first, second, third, and fifth Carey factors 5 militate in favor of dismissal. In particular, this is now the 6 fourth time the Court has had to resolve a lawsuit filed by 7 Plaintiff using the same inoperable address. See Order 8 Dismissing Action, Lowery v. City of L.A., No. CV 18-9644-R (JPR) 9 (C.D. Cal. May 10, 2019) (dismissing lawsuit for failure to 10 prosecute based on plaintiff’s failure to file change of address 11 in case filed with same address of record as here), ECF No. 17; 12 Order Dismissing Action, Lowery v. City of Beverly Hills, No. 20- 13 2654-ODW (JPR) (C.D. Cal. Apr. 30, 2020), ECF No. 13 (same); 14 Order Dismissing Action, Lowery v. City of L.A., No, 20-3373-ODW 15 (JPR) (C.D. Cal. May 26, 2020), ECF No. 10 (same). By not using 16 an address at which he can actually receive mail — or explain to 17 the Court why he is unable to do so — Plaintiff has rendered the 18 Court unable to communicate with him. And he has not rebutted 19 the presumption of prejudice to Defendants, nor is any less 20 drastic sanction available. See Scott v. Belmares, 328 F. App’x 21 538, 539 (9th Cir. 2009) (affirming dismissal of civil-rights 22 lawsuit in part because pro se plaintiff failed to keep court 23 apprised of change of address under Local Rule 41-6). Although 24 the fourth Carey factor weighs against dismissal — as it always 25 does — together the other factors outweigh the public’s interest 26 in disposing of the case on its merits. Indeed, because of 27 Plaintiff’s repeated filing of lawsuits that he does not 28 prosecute, dismissal should be with prejudice. 3 1 It therefore is ORDERED that this action is dismissed with 2 || prejudice under the Court’s inherent power to achieve the orderly 3} and expeditious disposition of cases and because Plaintiff has failed to prosecute it. 5 6 LET JUDGMENT BE ENTERED ACCORDINGLY. \ . 8 || DATED: February 19, 2021 Whit OTIS D. WRI 9 U.S. DISTRICT Tes 10 Presented by: 11 Watt dean P. Rosenbluth U.S. Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28