(PC) White v. Lao ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DARNEY RAY WHITE, Case No. 1:18-cv-00911-DAD-EPG 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THIS CASE BE 13 v. DISMISSED WITHOUT PREJUDICE, FOR FAILURE TO PROSECUTE 14 DEPUTY LAU, et al., 15 Defendants. 16 17 Darney Ray White (“Plaintiff”), is proceeding pro se and in forma pauperis in this civil 18 rights action pursuant to 42 U.S.C. § 1983. At the time he filed suit, Plaintiff was a prisoner in the 19 custody of the Fresno County Sheriff’s Office. On March 18, 2019, the Court adopted Findings 20 and Recommendations and ordered that “this action shall proceed only on plaintiff’s claim of 21 excessive force against defendants Deputy Lao and Deputy Gonzalez.” (ECF No. 21, p. 2.) 22 The Clerk’s Office mailed a copy of the Order Adopting Findings and Recommendations 23 to Plaintiff at his listed address of 1735022, Fresno County Jail, P.O. Box 872, Fresno, CA. 24 93712. 25 The Order was returned as undeliverable on April 1, 2019. Plaintiff has not responded to 26 the Court’s order or filed a notice of change of address.1 Accordingly, because it has been more 27 28 1 “A party appearing in propria persona shall keep the Court and opposing parties advised as to his or her current 1 than 63 days since the order was returned as undeliverable, the Court will recommend that 2 Plaintiff’s case be dismissed, without prejudice, for failure to prosecute. 3 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 4 comply with a court order, the Court must weigh the following factors: (1) the public=s interest in 5 expeditious resolution of litigation; (2) the court=s need to manage its docket; (3) the risk of 6 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 7 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 8 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 9 “‘The public=s interest in expeditious resolution of litigation always favors dismissal.’” 10 Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, this factor weighs in favor of dismissal. 11 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 12 determine whether the delay in a particular case interferes with docket management and the 13 public interest…. It is incumbent upon the Court to manage its docket without being subject to 14 routine noncompliance of litigants....” Pagtalunan, 291 at 639. As described above, Plaintiff has 15 failed to respond to a court order and has failed to update his address. These failures are delaying 16 this case and interfering with docket management. Therefore, the second factor weighs in favor 17 of dismissal. 18 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 19 and of itself to warrant dismissal.” Id. at 642 (citing Yourish, 191 F.3d at 991). However, Adelay 20 inherently increases the risk that witnesses= memories will fade and evidence will become stale,@ 21 id. at 643, and it is Plaintiff's failure to respond to a court order and to comply with the Local 22 Rule requiring him to keep the parties and the Court apprised of his current address that is causing 23 delay. Therefore, the third factor weighs in favor of dismissal. 24 As for the availability of lesser sanctions, at this stage in the proceedings there is little 25 available to the Court which would constitute a satisfactory lesser sanction while protecting the 26 Court from further unnecessary expenditure of its scarce resources. Considering Plaintiff’s in 27 address. If mail directed to a plaintiff in propria persona by the Clerk is returned by the U.S. Postal Service, and if such plaintiff fails to notify the Court and opposing parties within sixty-three (63) days thereafter of a current 28 address, the Court may dismiss the action without prejudice for failure to prosecute.” Local Rule 183(b) 1 | forma pauperis status, monetary sanctions are of little use, and given the stage of these 9 || proceedings, the preclusion of evidence or witnesses is not available. Additionally, because the 3 dismissal being considered in this case is without prejudice, the Court is stopping short of using 4 the harshest possible sanction of dismissal with prejudice. 5 Finally, because public policy favors disposition on the merits, this factor weighs against 6 dismissal. Id. After weighing the factors, the Court finds that dismissal without prejudice is appropriate. ’ Accordingly, the Court HEREBY RECOMMENDS that: 1. This action be dismissed, without prejudice, based on Plaintiff's failure to prosecute this case; and 10 2. The Clerk of Court be directed to close this case. These findings and recommendations will be submitted to the United States district judge 12 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(). Within twenty-one 13 (21) days after being served with these findings and recommendations, Plaintiff may file written 14 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 15 | Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 16 || specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 17 | 838-39 (th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 18 Plaintiff is also advised that the Court will vacate these findings and recommendations if 19 | he updates his current address in accordance with Local Rule 183(b) within the twenty-one day 29 | timeframe within which to file objections to the findings and recommendations. IT IS SO ORDERED. 22 23 | Dated: _ September 10, 2019 [see ey □□ UNITED STATES MAGISTRATE JUDGE 25 26 27 28