(PC) Morris v. Modhaddam ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CONDALEE MORRIS, No. 2: 18-cv-2850 MCE KJN P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 G. MODHADDAM, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. On August 17, 2020, the undersigned granted plaintiff thirty days to show 19 cause why this action should not be dismissed for his failure to prosecute. (ECF No. 52.) On 20 September 17, 2020, the August 17, 2020 order was returned to the court undelivered and marked 21 “refused.” Accordingly, the undersigned herein recommends that this action be dismissed for 22 plaintiff’s failure to prosecute. 23 On May 5, 2020, defendant Tesluk filed a motion to dismiss pursuant to Federal Rule of 24 Civil Procedure 12(b)(6). (ECF No. 41.) Plaintiff failed to file an opposition to defendant 25 Tesluk’s motion to dismiss. Accordingly, on July 17, 2020, the undersigned vacated defendant 26 Tesluk’s motion to dismiss and recommended that plaintiff’s claims against defendant Tesluk be 27 dismissed pursuant to Federal Rule of Civil Procedure 41(b). 28 //// 1 Because it is clear that plaintiff does not intend to prosecute this entire action, the 2 undersigned herein vacates the July 17, 2020 findings and recommendations and recommends 3 that this entire action (including the claims against defendant Tesluk) be dismissed based on 4 plaintiff’s failure to prosecute. 5 On July 28, 2020, August 4, 2020, August 17, 2020, September 14, 2020 and September 6 17, 2020, mail served on plaintiff was returned unserved and marked “refused.” On August 24, 7 2020, defendants filed the declaration of Jesse Sherman, the Litigation Coordinator at California 8 State Prison-Corcoran (“Corcoran”), where plaintiff is housed. (ECF No. 53.) Litigation 9 Coordinator Sherman states that they contacted the Corcoran mailroom and were advised that 10 plaintiff has been refusing to accept his legal mail, and, therefore, the mailroom has been 11 returning the mail to the sender as “Inmate Refused.” (Id.) 12 Local Rule 110 provides that a “[f]ailure of counsel or of a party to comply with these 13 Rules or with any order of the Court may be grounds for imposition by the Court of any and all 14 sanctions authorized by statute or Rule or within the inherent power of the Court.” District courts 15 have the inherent power to control their dockets and “in the exercise of that power, they may 16 impose sanctions including, where appropriate ... dismissal of a case.” Thompson v. Housing 17 Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based 18 on a party's failure to prosecute an action, failure to obey a court order, or failure to comply with 19 local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for 20 noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) 21 (dismissal for failure to comply with an order requiring amendment of complaint); Carey v. King, 22 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring 23 pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 24 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779 25 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with 26 local rules). 27 //// 28 //// 1 In determining whether to dismiss an action for lack of prosecution, failure to obey a court 2 order, or failure to comply with local rules, the court must consider several factors: (1) the 3 public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; 4 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on 5 their merits; and (5) the availability of less drastic alternatives. Ghazali, 46 F.3d at 53; Ferdik, 6 963 F.2d at 1260-61; Malone, 833 F.2d at 130; Thompson, 782 F.2d at 831; Henderson, 779 F.2d 7 at 1423-24. 8 The undersigned finds that the public’s interest in expeditiously resolving this litigation 9 and the court’s interest in managing the docket weigh in favor of dismissal because this case has 10 been pending for almost two years. The third factor, risk of prejudice to the defendants, also 11 weighs in favor of dismissal because defendants will be prejudiced by any unreasonable delay in 12 the prosecution of this action. The fourth factor, public policy favoring disposition of cases of 13 cases on their merits, is greatly outweighed by the factors favoring dismissal. The undersigned 14 finds that there are no less drastic alternatives available because it is clear that plaintiff does not 15 intend to prosecute this action. As discussed above, plaintiff has repeatedly refused to accept his 16 legal mail. 17 For the reasons discussed above, the undersigned finds that this action should be 18 dismissed for plaintiff’s failure to prosecute. 19 Accordingly, IT IS HEREBY ORDERED that the July 17, 2020 findings and 20 recommendations (ECF No. 51) are vacated; and 21 IT IS HEREBY RECOMMENDED that this action be dismissed based on plaintiff’s 22 failure to prosecute. 23 These findings and recommendations are submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 25 after being served with these findings and recommendations, any party may file written 26 objections with the court and serve a copy on all parties. Such a document should be captioned 27 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 28 objections shall be filed and served within fourteen days after service of the objections. The wAIe 6. LOU INIS LENG IN RAUL OIA POE AY OT Mt 1 | parties are advised that failure to file objections within the specified time may waive the right to 2 || appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 | Dated: September 22, 2020 ‘ Fens Arn 5 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 6 7 8 Morr2850.fr 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28