Evans v. Madera County Police Department ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LEO EVANS, No. 1:20-cv-00501-NONE-HBK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT THIS CASE BE DISMISSED WITHOUT 13 v. PREJUDICE1 14 MADERA COUNTY POLICE OBJECTIONS DUE WITHIN THIRTY DAYS DEPARTMENT, et. al., 15 Defendants. 16 17 This matter comes before the court upon initial review of the file, which was reassigned to 18 the undersigned on November 17, 2020. (Doc. No.6). As more fully set forth below, the 19 undersigned recommends the court dismiss this case without prejudice due to plaintiff’s failure to 20 comply with a court order, update his address and prosecute this action. 21 I. FACTS AND BACKGROUND 22 Plaintiff Leo Evans is a current or former state prisoner proceeding pro se and in forma 23 pauperis on his civil rights complaint filed under 42 U.S.C. § 1983. (Doc. Nos. 1, 4). On June 8, 24 2020, the court issued a screening order under 28 U.S.C. § 1915A and determined plaintiff’s 25 complaint failed “to state a cognizable claim against any defendant.” (Doc. No. 4 at 4). The court 26 ordered plaintiff to file an amended complaint within sixty (60) days and warned him that if he 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 failed to comply with the court’s order the case would be dismissed. (Id. at 5, ¶¶ 2-3). The court’s 2 order was apparently delivered to plaintiff because it was not returned as undeliverable. 3 After plaintiff failed to timely comply with the court’s June 8, 2020 order, the court issued 4 an order to show cause “why the court should not dismiss [plaintiff’s] case for failure to state a 5 claim and failure to prosecute.” (See November 13, 2020 Order, Doc. No. 5 at 2). The court’s 6 show cause order was returned to the court as “Undeliverable, Insufficient Address” on November 7 24, 2020. (See docket). The court’s order reassigning this case to the undersigned was also returned 8 as “Undeliverable, Not at Avenal State Prison” on November 30, 2020. (Id.). Plaintiff’s notice of 9 change of address was due by February 8, 2021. As of the date of these findings and 10 recommendations, plaintiff has not filed an amended complaint nor filed a notice of change of 11 address. (Id.). 12 II. APPLICABLE LAW 13 This court’s Local Rules require litigants to keep the court apprised of their current 14 address and permits dismissal when the litigant fails to comply. Specifically: 15 “[a] party appearing in propria persona shall keep the Court and opposing parties advised as to his or her current address. If mail 16 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 17 and opposing parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without prejudice 18 for failure to prosecute.” 19 E.D. Cal. Loc. R. 183(b) (2019); see also Local Rule 182(f) (all parties are “under a continuing 20 duty” to notify the clerk of “any change of address.” Precedent supports a dismissal of a case 21 when a litigant fails to keep the court appraised on his address. Carey v. King, 856 F.2d 1439 22 (9th Cir. 1988) (affirming lower court and finding no abuse of discretion when district court 23 dismissed case without prejudice after pro se plaintiff did not comply with local rule requiring 24 pro se plaintiffs keep court apprised of addresses at all times); Hanley v. Opinski, Case No. 1:16- 25 cv-391-DAD-SAB, 2018 WL 3388510 (E.D. Ca. July 10, 2018) (dismissing action for failure to 26 prosecute and failure to provide court with current address). 27 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action 28 when a litigant fails to prosecute an action or fails to comply with other Rules or with a court 1 order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 2 (9th Cir. 2019) (citations omitted); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 3 683, 689 (9th Cir. 2005) (“[T]he consensus among our sister circuits, with which we agree, is that 4 courts may dismiss under Rule 41(b) sua sponte, at least under certain circumstances.”). Local 5 Rule 110 similarly permits the court to impose sanctions on a party who fails to comply with the 6 court’s Rules or any order of court. 7 Involuntary dismissal is a harsh penalty, but it “is incumbent upon the Court to manage its 8 docket without being subject to routine noncompliance of litigants.” Pagtalunan v. Galaza, 291 9 F.3d 639, 642 (9th Cir. 2002). Before dismissing an action under Fed. R. Civ. P. 41, the court 10 must consider: (1) the public interest in expeditious resolution of litigation; (2) the court’s need to 11 manage a docket; (3) the risk of prejudice to defendant; (4) public policy favoring disposition on 12 the merits; and (5) the availability of less drastic sanctions. See Applied Underwriters, 913 F.3d 13 at 889 (noting that these five factors “must” be analyzed before a Rule 41 involuntary dismissal) 14 (emphasis added); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (reviewing 15 five factors and independently reviewing the record because district court did not make finding as 16 to each factor); but see Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000) (listing 17 the same five factors, but noting the court need not make explicit findings as to each) (emphasis 18 added); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (affirming dismissal of pro se § 19 1983 action when plaintiff did not amend caption to remove “et al” as the court directed and 20 reiterating that an explicit finding of each factor is not required by the district court). 21 III. ANALYSIS 22 The undersigned considers each of the above-stated factors and concludes dismissing this 23 case is warranted. The expeditious resolution of litigation is deemed to be in the public interest, 24 satisfying the first factor. Yourish v. California Amplifier, 191 F.3d 983, 990–91 (9th Cir. 1999). 25 Turning to the second factor, the court’s need to efficiently manage its docket cannot be 26 overstated. This court has “one of the heaviest caseloads in the nation,” and due to unfilled 27 judicial vacancies, which is further exacerbated by the Covid-19 pandemic, operates under a 28 declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 1 Emergency in the Eastern District of California. The court’s time is better spent on its other 2 matters than needlessly consumed managing a case with a recalcitrant litigant. Indeed, “trial 3 courts do not have time to waste on multiple failures by aspiring litigants to follow the rules and 4 requirements of our courts.” Pagtalunan, 291 F.3d at 644 (Trott, J., concurring in affirmance of 5 district court’s involuntary dismissal with prejudice of habeas petition where petitioner failed to 6 timely respond to court order and noting “the weight of the docket-managing factor depends upon 7 the size and load of the docket, and those in the best position to know what that is are our 8 beleaguered trial judges.”). Delays have the inevitable and inherent risk that evidence will 9 become stale or witnesses' memories will fade or be unavailable and can prejudice a defendant, 10 thereby satisfying the third factor. See Sibron v. New York, 392 U.S. 40, 57 (1968). Attempting a 11 less drastic action, such as issuing another order to show cause, would be futile because plaintiff 12 has failed to update his address and thus any correspondence sent to him will be returned. 13 Additionally, the instant dismissal is a dismissal without prejudice, which is a lesser sanction than 14 a dismissal with prejudice, thereby addressing the fifth factor. 15 More than 10 months have passed, and plaintiff has not amended his complaint despite 16 being warned that his failure to do so would be cause for dismissal. And contrary to Local Rule 17 183(b), more than 63 days have passed since mail was returned as undeliverable and plaintiff has 18 not updated his mailing address or otherwise contacted the court. Considering these factors and 19 those set forth supra, as well as binding case law, the undersigned recommends dismissal, without 20 prejudice, under Fed. R. Civ. P. 41(b) and Local Rules 110 and 183(b). 21 Accordingly, it is RECOMMENDED: 22 This case be dismissed without prejudice. 23 NOTICE TO PARTIES 24 These findings and recommendations will be submitted to the United States district judge 25 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) 26 days after being served with these findings and recommendations, a party may file written 27 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 28 Findings and Recommendations.” Parties are advised that failure to file objections within the 1 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 2 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 IT IS SO ORDERED. ated: April 30, 2021 Mle fareh Zack 6 HELENA M. BARCH-KUCHTA 7 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28