(PC) Hill v. Hodan ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BRIAN TRACEY HILL, Case No.: 1:21-cv-01311-ADA-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. TO DISMISS THIS ACTION FOR PLAINTIFF’S FAILURE TO OBEY 14 E. HODAN, et al., COURT ORDERS AND FAILURE TO PROSECUTE 15 Defendants. 14-DAY OBJECTION PERIOD 16 17 Plaintiff Brian Tracey Hill 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 a complaint on August 30, 2021. (Doc. 1.) On January 25, 2023, this Court 21 issued its First Screening Order. (Doc. 15.) The Court found Plaintiff’s complaint states 22 cognizable Eighth Amendment excessive force claims against named Defendants Hodan, 23 Sizemore, Cruz and Fezeu, but failed to state any other cognizable claim against any named 24 Defendant. (Id. at 11.) Plaintiff was directed to select one of the following options: (1) file a 25 notice with the Court indicating his election to proceed only on those claims found cognizable by 26 the Court; (2) file a first amended complaint; or (3) file a notice of voluntary dismissal. (Id. at 11- 27 12.) Plaintiff was afforded 21 days from the date of service of the order within which to respond. (Id.) 1 On February 6, 2023, before the 21-day period passed, the screening order was returned 2 by the U.S. Postal Service marked Undeliverable, Return to Sender, Insufficient Address and 3 Unable to Forward. (Docket Entry dated 2/6/23.) 4 On February 16, 2023, the Court issued its Order To Show Cause Why Action Should Not 5 Be Dismissed For A Failure To Obey Court Order (OSC). (Doc. 16.) Plaintiff was ordered to 6 show cause in writing why he failed to comply with the screening order of January 25, 2023, or 7 alternatively, to notify the Court he did not wish to file an amended complaint and was willing to 8 proceed only on his cognizable claims of excessive force against named Defendants Hodan, 9 Sizemore, Cruz and Fezeu, or to file a first amended complaint, or to file a notice of voluntary 10 dismissal. (Id. at 2-3.) Plaintiff was also ordered to advise the Court of his current and correct 11 address. (Id. at 3.) More than 21 days have passed, and Plaintiff has failed to respond to the OSC. 12 II. DISCUSSION 13 The Local Rules, corresponding with Federal Rule of Civil Procedure 11, provide, 14 “[f]ailure of counsel or of a party to comply with . . . any order of the Court may be grounds for 15 the imposition by the Court of any and all sanctions . . . within the inherent power of the Court.” 16 Local Rule 110. “District courts have inherent power to control their dockets” and, in exercising 17 that power, may impose sanctions, including dismissal of an action. Thompson v. Housing Auth., 18 City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based on a 19 party’s failure to prosecute an action, obey a court order, or comply with local rules. See, e.g., 20 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with a 21 court order to amend a complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 22 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 23 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). 24 Local Rule 182(f) provides that a “pro se party is under a continuing duty to notify the 25 Clerk and all other parties of any change of address …. Absent such notice, service of documents 26 at the prior address of the … pro se party shall be fully effective.” Here, according to the Court’s 27 docket, Plaintiff filed a Notice of Change of Address on October 5, 2022, wherein he advised his 1 Brian T. Hill Bay Area Rescue Mission 2 200 McDonal Ave. Richmond, CA 94807 3 4 (See Doc. 14.) The First Screening Order and the OSC were served on Plaintiff at this address. 5 This address is either incorrect or no longer current. Plaintiff has an obligation to keep the Court 6 apprised of his current, and correct, address. Because Plaintiff has failed to do so, this action is 7 subject to dismissal. 8 “In determining whether to dismiss an action for lack of prosecution, the district court is 9 required to weigh several factors: (1) the public’s interest in expeditious resolution of litigation; 10 (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 11 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 12 sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (internal quotation marks & 13 citation omitted). These factors guide a court in deciding what to do and are not conditions that 14 must be met in order for a court to take action. In re Phenylpropanolamine (PPA) Products 15 Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (citation omitted). 16 Plaintiff’s failure to respond to the First Screening Order and to the OSC, coupled with 17 Plaintiff’s failure to keep the Court apprised of his current and correct address, weigh in favor of 18 dismissal. Given the Court’s inability to communicate with Plaintiff, there are no other reasonable 19 alternatives available to address Plaintiff’s failure to obey orders, failure to prosecute this action 20 and failure to keep the Court apprised of his current address. Thus, the first and second factors — 21 the expeditious resolution of litigation and the Court’s need to manage its docket — weigh in 22 favor of dismissal. Carey, 856 F.2d at 1440. 23 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal since a 24 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 25 See Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). Here, while no defendant has 26 appeared in this action, the case has been pending for more than eighteen months and cannot 27 proceed further without Plaintiff’s cooperation. Thus, the third factor — a risk of prejudice to the 1 The fourth factor usually weighs against dismissal because public policy favors 2 disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, 3 “this factor lends little support to a party whose responsibility it is to move a case toward 4 disposition on the merits but whose conduct impedes progress in that direction.” In re PPA, 460 5 F.3d at 1228. Plaintiff has not moved this case forward toward disposition on the merits. He has 6 instead stopped communicating with the Court, and has failed to comply with this Court’s orders 7 and the Local Rules. Therefore, the fourth factor — the public policy favoring disposition of 8 cases on their merits — also weighs in favor of dismissal. Carey, 856 F.2d at 1440. 9 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 10 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262. 11 In the First Screening Order issued January 25, 2023, Plaintiff was advised, “If Plaintiff fails to 12 comply with this order, the Court will recommend that this action be dismissed for failure 13 to state a claim and to obey a court order.” (Doc. 15 at 12, emphasis in original.) In its OSC 14 issued February 26, 2023, the Court warned “Failure to comply with this Order to Show Cause 15 (OSC) will result in a recommendation that this action be dismissed for Plaintiff’s failure to 16 obey court orders.” (Doc. 16 at 3, emphasis in original.) Thus, the undersigned finds Plaintiff 17 had adequate warning that dismissal could result from his noncompliance with a Court order and 18 this Court’s local rules. In sum, the fifth factor — the availability of less drastic sanctions — 19 weighs in favor of dismissal. Ferdik, 963 F.2d at 1262; Carey, 856 F.2d at 1440. 20 III. CONCLUSION AND RECOMMENDATIONS 21 Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed without 22 prejudice, based on Plaintiff’s failure to obey court orders and to prosecute this action, as well as 23 his failure to keep the Court apprised of his current or correct address. 24 These Findings and Recommendations will be submitted to the United States District 25 Judge assigned to the case, under the provisions of 28 U.S.C. § 636(b)(l). Within 14 days after 26 being served with these Findings and Recommendations, Plaintiff may file written objections 27 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings 1 time may result in the waiver of the “right to challenge the magistrate’s factual findings” on 2 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 3 F.2d 1391, 1394 (9th Cir. 1991)). 4 IT IS SO ORDERED. 5 6 Dated: March 20, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27