(PC) Jones v. Plant ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ERIC JONES, No. 1:19-cv-00207-HBK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT THIS CASE BE DISMISSED WITHOUT 13 v. PREJUDICE1 14 C/O PLANT, OBJECTIONS DUE IN THIRTY DAYS 15 Defendant. ORDER DIRECTING CLERK TO ASSIGN A DISTRICT JUDGE 16 17 18 This matter comes before the court upon initial review of the file, which was reassigned to 19 the undersigned on November 17, 2020. (Doc. No. 13). As more fully set forth below, the 20 undersigned recommends the court dismiss this case without prejudice due to plaintiff’s failure to 21 prosecute this action and failure to update his address of record. 22 I. FACTS AND BACKGROUND 23 Plaintiff Eric Jones is a state prisoner proceeding pro se and in forma pauperis on his civil 24 rights complaint filed under 42 U.S.C. § 1983. (Doc. Nos. 1, 7). On November 8, 2019, the court 25 issued a screening order under 28 U.S.C. § 1915A and concluded the complaint plausibly stated a 26 failure to protect claim but did not state an excessive force claim against the sole defendant. (Doc. 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. 28 2019). 1 No. 11 at 2). The court ordered plaintiff within thirty (30) days to: (1) file an amended complaint; 2 (2) to voluntarily dismiss the excessive force claim, or (3) notify the court he wishes to stand on 3 his complaint subject to dismissal of claims consistent with the order. (Id. at 5-6). The court 4 cautioned plaintiff that his failure to respond to the court’s November 8, 2019 Order would result 5 in dismissal of this action. (Id. at 6). 6 Well after the thirty (30) days period expired, the court issued an order to show cause why 7 the court should not dismiss the case for plaintiff’s failure to prosecute and to comply with the 8 court’s November 8, 2019 Order. (See May 11, 2020 Order, Doc. No. 12 at 1-2). On May 18, 9 2020, the court’s show cause order was returned to the court as “Undeliverable. Refused. Unable 10 to Forward.” Again, on November 30, 2020, the court’s order reassigning this case to the 11 undersigned was returned as “Undeliverable. Inmate Refused.” Plaintiff has not filed an updated 12 address, to the extent he has been transferred or released as required by Local Rule 182(f). (See 13 docket). 14 II. APPLICABLE LAW 15 This court’s Local Rules require litigants to keep the court apprised of their current 16 address, specifically providing: 17 “[a] party appearing in propria persona shall keep the Court and opposing parties advised as to his or her current address. If mail 18 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 19 and opposing parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without prejudice 20 for failure to prosecute.” 21 E.D. Cal. Loc. R. 183(b) (2019). Federal Rule of Civil Procedure 41(b) permits the court to 22 involuntarily dismiss an action when a litigant fails to prosecute an action or fails to comply with 23 other Rules or with a court order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. 24 Lichtenegger, 913 F.3d 884, 889 (9th Cir. 2019) (citations omitted) Hells Canyon Pres. Council 25 v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (“[T]he consensus among our sister 26 circuits, with which we agree, is that courts may dismiss under Rule 41(b) sua sponte, at least 27 under certain circumstances.”). Local Rule 110 similarly permits the court to impose sanctions 28 on a party who fails to comply with the court’s Rules or any order of court. 1 Before dismissing an action under Fed. R. Civ. P. 41, the court must consider: (1) the 2 public interest in expeditious resolution of litigation; (2) the court’s need to manage a docket; (3) 3 the risk of prejudice to defendant; (4) public policy favoring disposition on the merits; (5) the 4 availability of less drastic sanctions. See Applied Underwriters, 913 F.3d at 889 (noting court 5 that these five factors “must” be analyzed before a Rule 41 involuntarily dismissal) (emphasis 6 added); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (reviewing five factors 7 and independently reviewing the record because district court did not make finding as to each); 8 but see Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000) (listing the same, but 9 noting the court need not make explicit findings as to each) (emphasis added); Ferdik v. Bonzelet, 10 963 F.2d 1258, 1260 (9th Cir. 1992) (affirming dismissal of pro se 1983 action when plaintiff did 11 not amend caption to remove “et al” as the court directed and reiterating that an explicit finding of 12 each factor is not required by the district court). 13 III. ANALYSIS 14 The undersigned considers each of the above-stated factors and concludes dismissal is 15 warranted in this case. The expeditious resolution of litigation is deemed to be in the public 16 interest, satisfying the first factor. Yourish v. California Amplifier, 191 F.3d 983, 990-91 (9th Cir. 17 1999). Turning to the second factor, the court’s need to efficiently manage its docket cannot be 18 overstated. This court has “one of the heaviest caseloads in the nation,” and due to unfilled 19 judicial vacancies, which is further exacerbated by the Covid-19 pandemic, operates under a 20 declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 21 Emergency in the Eastern District of California. The court’s time is better spent on its other 22 matters than needlessly consumed managing a case with a recalcitrant litigant. Indeed, “trial 23 courts do not have time to waste on multiple failures by aspiring litigants to follow the rules and 24 requirements of our courts.” Pagtalunan v. Galaza, 291 F.3d 639, 644 (9th Cir. 2002) (Trott, J., 25 concurring in affirmance of district court’s involuntary dismissal with prejudice of habeas petition 26 where petitioner failed to timely respond to court order and noting “the weight of the docket- 27 managing factor depends upon the size and load of the docket, and those in the best position to 28 know what that is are our beleaguered trial judges.”). Delays inevitably have the inherent risk 1 that evidence will become stale or witnesses' memories will fade or be unavailable and can 2 prejudice a defendant, thereby satisfying the third factor. See Sibron v. New York, 392 U.S. 40, 3 57 (1968). Finally a less drastic remedies in lieu of dismissal, such as, directing plaintiff to 4 submit an updated address, or second order to show cause why the case should not be dismissed 5 for failure to comply with Local Rules would be an act of futility because the order would be 6 returned without delivery. Additionally, the instant dismissal is a dismissal without prejudice, 7 which is a lesser sanction than a dismissal with prejudice, thereby addressing the fifth factor. 8 Two separate orders from the court have been returned as undeliverable. And contrary to 9 Local Rule 183(b), well more than 63 days have passed since mail was returned as undeliverable 10 and plaintiff has not updated his mailing address or otherwise contacted the court. After 11 considering the factors set forth supra and binding case law, the undersigned recommends 12 dismissal, without prejudice, under Fed. R. Civ. P. 41 and Local Rules 110 and 183(b). 13 Accordingly, it is ORDERED: 14 The Clerk shall assign this case to a district judge. 15 It is further RECOMMENDED: 16 This case be dismissed without prejudice under Fed. R. Civ. P. 41(b), and Local Rules 110 17 and 183 (b). 18 NOTICE TO PARTIES 19 These findings and recommendations will be submitted to the United States district judge 20 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) 21 days after being served with these findings and recommendations, a party may file written 22 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 23 Findings and Recommendations.” Parties are advised that failure to file objections within the 24 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 25 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 26 /// 27 /// 28 /// 1 > | IT IS SO ORDERED. ° Dated: __April 30, 2021 Moa WN. fered Yack 4 HELENA M. BARCH-KUCHTA ; UNITED STATES MAGISTRATE JUDGE 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28