(PC) Robinson v. Cryer ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEFFERY DONELL ROBINSON, No. 1:20cv980-NONE-HBK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT THIS CASE BE DISMISSED, WITHOUT 13 v. PREJUDICE1 14 C. CRYER, L. MERRITT, OBJECTIONS DUE WITHIN FOURTEEN DAYS 15 Defendants. 16 17 I. FACTS AND BACKGROUND 18 Plaintiff Jeffery Donell Robinson is a current or former state prisoner proceeding pro se 19 on his civil rights complaint filed under 42 U.S.C. § 1983. Doc. No. 1. On December 3, 2020 20 and again on February 9, 2020, mail from the Court delivered to plaintiff at his only address of 21 record was returned as undeliverable. See docket. Plaintiff’s address change was due by 22 February 11, 2020. As of the date of this Findings and Recommendation, plaintiff has neither 23 filed a notice of change of address nor contacted the court. 24 II. APPLICABLE LAW 25 This court’s Local Rules require litigants to keep the court apprised of their current 26 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Ca. 2019). 28 1 address, specifically providing: 2 “[a] party appearing in propria persona shall keep the Court and opposing parties advised as to his or her current address. If mail 3 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 4 and opposing parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without prejudice 5 for failure to prosecute.” 6 E.D. Cal. Loc. R. 183(b) (2019). Federal Rule of Civil Procedure 41(b) permits the court to 7 involuntarily dismiss an action when a litigant fails to prosecute an action or fails to comply with 8 other Rules or with a court order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. 9 Lichtenegger, 913 F.3d 884, 889 (9th Cir. 2019) (citations omitted). Local Rule 110 similarly 10 permits the court to impose sanctions on a party who fails to comply with the court’s Rules or any 11 order of court. 12 Before dismissing an action under Fed. R. Civ. P. 41, the court must consider: (1) the 13 public interest in expeditious resolution of litigation; (2) the court’s need to manage a docket; (3) 14 the risk of prejudice to defendant; (4) public policy favoring disposition on the merits; (5) the 15 availability of less drastic sanctions. See Applied Underwriters, 913 F.3d at 889 (noting court 16 that these five factors “must” be analyzed before a Rule 41 involuntarily dismissal) (emphasis 17 added); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (reviewing five factors 18 and independently reviewing the record because district court did not make finding as to each); 19 but see Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000) (listing the same, but 20 noting the court need not make explicit findings as to each) (emphasis added); Ferdik v. Bonzelet, 21 963 F.2d 1258, 1260 (9th Cir. 1992) (affirming dismissal of pro se 1983 action when plaintiff did 22 not amend caption to remove “et al” as the court directed and reiterating that an explicit finding of 23 each factor is not required by the district court). 24 II. ANALYSIS 25 The undersigned considers each of the above-stated factors and concludes dismissal is 26 warranted in this case. The expeditious resolution of litigation is deemed to be in the public 27 interest, satisfying the first factor. Yourish v. California Amplifier, 191 F.3d 983, 990-91 (9th Cir. 28 1999). Turning to the second factor, the court’s need to efficiently manage its docket cannot be 1 overstated. This court has “one of the heaviest caseloads in the nation,” and due to unfilled 2 judicial vacancies, which is further exacerbated by the Covid-19 pandemic, operates under a 3 declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 4 Emergency in the Eastern District of California. The court’s time is better spent on its other 5 matters than needlessly consumed managing a case with a recalcitrant litigant. Indeed, “trial 6 courts do not have time to waste on multiple failures by aspiring litigants to follow the rules and 7 requirements of our courts.” Pagtalunan v. Galaza, 291 F.3d 639, 644 (9th Cir. 2002) (Trott, J., 8 concurring in affirmance of district court’s involuntary dismissal with prejudice of habeas petition 9 where petitioner failed to timely respond to court order and noting “the weight of the docket- 10 managing factor depends upon the size and load of the docket, and those in the best position to 11 know what that is are our beleaguered trial judges.”). Delays inevitably have the inherent risk 12 that evidence will become stale or witnesses' memories will fade or be unavailable and can 13 prejudice a defendant, thereby satisfying the third factor. See Sibron v. New York, 392 U.S. 40, 14 57 (1968). Finally a less drastic remedies in lieu of dismissal, such as, directing plaintiff to 15 submit an updated address, or an order to show cause why the case should not be dismissed for 16 failure to comply with Local Rules would be an act of futility because the order would be 17 returned without delivery. Additionally, the instant dismissal is a dismissal without prejudice, 18 which is a lesser sanction than a dismissal with prejudice, thereby addressing the fifth factor. 19 Two separate orders from the court have been returned as undeliverable. And contrary to 20 Local Rule 183(b), more than 63 days have passed since mail was returned as undeliverable and 21 plaintiff has not updated his mailing address or otherwise contacted the court. After considering 22 the factors set forth supra and binding case law, the undersigned recommends dismissal, without 23 prejudice, under Fed. R. Civ. P. 41 and Local Rules 110 and 183(b). 24 Accordingly, it is RECOMMENDED: 25 1. This case be dismissed without prejudice. 26 2. The Clerk of Court be directed to terminate any pending motions/deadlines and close 27 this case. 28 1 NOTICE TO PARTIES 2 These findings and recommendations will be submitted to the United States district judge 3 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 4 | (14) days after being served with these findings and recommendations, a party may file written 5 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 6 | Findings and Recommendations.” Parties are advised that failure to file objections within the 7 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 8 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 9 10 IT IS SO ORDERED. Dated: March 5, 2021 Mile. Wh fareh Zaskth 12 HELENA M. BARCH-KUCHTA 3 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28