(PC) Davood v. North Kern State Prison ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVOOD KHADEMI, Case No. 1:21-cv-01261-DAD-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS THIS ACTION FOR A 13 v. FAILURE TO PROSECUTE AND FAILURE TO KEEP COURT APPRISED 14 NORTH KERN STATE PRISON, et al., OF CURRENT ADDRESS 15 Defendants. 14-DAY OBJECTION PERIOD 16 17 Plaintiff Davood Khademi is proceeding pro se and in forma pauperis in this civil rights 18 action brought pursuant to 42 U.S.C. § 1983. 19 I. RELEVANT BACKGROUND 20 Plaintiff filed his original complaint on August 19, 2021. (Doc. 1.) On September 10, 21 2021, Plaintiff filed a motion for temporary restraining order and preliminary injunction. (Doc. 22 11.) On September 23, 2021, Plaintiff filed a notice of change of address. (Doc. 12.) 23 On November 4, 20121, Plaintiff filed a motion to set aside the information (Doc. 13), and 24 on December 15, 2021, he filed a motion for appointment of exert psychologist and investigator 25 or attorney (Doc. 14). On February 2, 2022, Plaintiff filed another notice of change of address. 26 (Doc. 15.) 27 On April 27, 2022, the undersigned issued Findings and Recommendations to deny Plaintiff’s motion for temporary restraining order. (Doc. 16.) 1 On May 2, 2022, the undersigned issued an order denying Plaintiff’s motion to set aside 2 the information and motion to appoint expert and investigator and/or attorney. (Doc. 17.) 3 On May 23, 2022, District Judge Dale A. Drozd issued an Order Adopting Findings and 4 Recommendations and Denying Plaintiff’s Motion for a Temporary Restraining Order. (Doc. 18.) 5 The order was served on Plaintiff via U.S. Mail at his address then on file with the Court. 6 On June 15, 2022, the docket reflects the Order previously served upon Plaintiff on May 7 23, 2022, was returned by the United States Postal Service marked “Undeliverable, Return to 8 Sender, and Unable to Forward.” 9 II. DISCUSSION 10 Plaintiff is required to keep the Court apprised of his current address at all times. Local 11 Rule 183(b) provides: 12 Address Changes. A party appearing in propria persona shall keep the Court and 13 opposing parties advised as to his or her current address. If mail directed to a plaintiff in propria persona by the Clerk is returned by the U.S. Postal Service, and 14 if such plaintiff fails to notify the Court and opposing parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without 15 prejudice for failure to prosecute. 16 Federal Rule of Civil Procedure 41(b) also provides for dismissal of an action for failure to 17 prosecute.1 18 According to the Court’s docket, Plaintiff’s address change was due no later than August 19 22, 2022. A total of 63 days has elapsed since the mail directed to Plaintiff was returned to the 20 Court marked as undeliverable. Plaintiff has failed to file a change of address and has not 21 otherwise been in contact with the Court. Therefore, Plaintiff has failed to comply with this 22 Court’s Local Rules and has failed to prosecute this action. 23 “In determining whether to dismiss an action for lack of prosecution, the district court is 24 required to weigh several factors: (1) the public’s interest in expeditious resolution of litigation; 25 (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 26 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 27 1 Courts may dismiss actions sua sponte under Rule 41(b) based on the plaintiff’s failure to prosecute. 1 sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (internal quotation marks & 2 citation omitted); accord Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010); In re 3 Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006). 4 These factors guide a court in deciding what to do and are not conditions that must be met in 5 order for a court to take action. In re PPA, 460 F.3d at 1226 (citation omitted). 6 Turning to the determination whether this Court should dismiss the action, Plaintiff’s 7 failure to file a notice of change of address after May 23, 2022, weighs in favor of dismissal. This 8 is particularly so where Plaintiff has previously advised the Court of two prior address changes 9 (see Docs. 12 [from North Kern State Prison to Salinas Valley State Prison] & 15 [from Salinas 10 Valley State Prison to Atascadero State Hospital]). Given the Court’s inability to communicate 11 with Plaintiff, there are no other reasonable alternatives available to address Plaintiff’s failure to 12 prosecute this action and his failure to apprise the Court of his current address. Thus, the first and 13 second factors — the expeditious resolution of litigation and the Court’s need to manage its 14 docket —weigh in favor of dismissal. Carey, 856 F.2d at 1440-41; Henderson, 779 F.2d at 1423; 15 In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1227 (9th Cir. 16 2006). 17 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal since a 18 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 19 See Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). Here, while no defendant has 20 appeared in this action, the case has been pending for more than one year. 21 The fourth factor usually weighs against dismissal because public policy favors 22 disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, 23 “this factor lends little support to a party whose responsibility it is to move a case toward 24 disposition on the merits but whose conduct impedes progress in that direction.” Plaintiff has not 25 moved this case forward toward disposition on the merits. He has instead stopped communicating 26 with the Court altogether. In re PPA, 460 F.3d at 1228. 27 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 1 Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. An order warning Plaintiff that a 2 failure to obey will result in dismissal did not issue here. This Court’s local rules, however, warn 3 parties of the possibility of dismissal in a situation such as this: “[T]he Court may dismiss the 4 action without prejudice for failure to prosecute” where a party appearing pro se fails to keep the 5 Court advised as to his current address. See Local Rule 183(b). Plaintiff was familiar with this 6 obligation and previously notified the Court of two prior address changes. Thus, the undersigned 7 finds Plaintiff had adequate warning that dismissal could result from his noncompliance with the 8 Court’s local rules. 9 III. CONCLUSION AND RECOMMENDATION 10 The Court HEREBY RECOMMENDS that this action be dismissed, without prejudice, 11 based on Plaintiff’s failure to prosecute this action and failure to keep the Court apprised of his 12 current address. Fed. R. Civ. P. 41(b); Local Rule 183(b). 13 These Findings and Recommendations will be submitted to the United States District 14 Judge assigned to the case, under the provisions of 28 U.S.C. § 636(b)(l). Within 14 days after 15 being served with these Findings and Recommendations, Plaintiff may file written objections 16 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings 17 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 18 time may result in the waiver of the “right to challenge the magistrate’s factual findings” on 19 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 20 F.2d 1391, 1394 (9th Cir. 1991)). 21 IT IS SO ORDERED. 22 23 Dated: August 30, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 24 25 26 27