(PC) Usher v. Sosa ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS ALFRED USHER, Case No. 1:22-cv-00023-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION WITHOUT 13 v. PREJUDICE FOR PLAINTIFF’S FAILURE TO OBEY COURT ORDERS 14 SOSA, Deputy Officer at Kern County AND FAILURE TO PROSECUTE Sheriff’s Office, 15 14-DAY OBJECTION PERIOD Defendant. 16 Clerk of the Court to Assign District Judge 17 18 Plaintiff Thomas Alfred Usher is a pretrial detainee proceeding pro se and in forma 19 pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. 20 I. INTRODUCTION 21 In its First Screening Order issued February 16, 2023, the Court determined Plaintiff’s 22 complaint failed to state a claim upon which relief could be granted. (Doc. 5 at 3-5.) The Court 23 directed Plaintiff to file a first amended complaint curing the deficiencies identified in the order, 24 or to file a notice of voluntary dismissal. (Id. at 5.) Plaintiff was to do so within 21 days of service 25 of the order. (Id.) 26 On February 24, 2023, the screening order was returned to the Court by the United States 27 Postal Service marked “Undeliverable” and “Not in Custody.” (See Docket Entry of 2/24/23.) 1 On March 28, 2023, the Court issued its Order To Show Cause (OSC) Why Action 2 Should Not Be Dismissed For Failure To Obey Court Orders. (Doc. 6.) Plaintiff was ordered to 3 show cause in writing, within 21 days, why the action should not be dismissed for his failure to 4 keep the Court apprised of his current address and for his failure to comply with the screening 5 order. (Id. at 2.) Alternatively, Plaintiff was advised he could file either a first amended complaint 6 or a notice of voluntary dismissal, and a notice of change of address, within that same time. (Id.) 7 On April 10, 2023, the OSC was returned to the Court by the United States Postal Service 8 marked “Undeliverable, Refused.” (See Docket Entry dated 4/10/23.) 9 II. DISCUSSION 10 Applicable Legal Standards 11 The Local Rules, corresponding with Federal Rule of Civil Procedure 11, provide, 12 “[f]ailure of counsel or of a party to comply with . . . any order of the Court may be grounds for 13 the imposition by the Court of any and all sanctions . . . within the inherent power of the Court.” 14 Local Rule 110. “District courts have inherent power to control their dockets” and, in exercising 15 that power, may impose sanctions, including dismissal of an action. Thompson v. Housing Auth., 16 City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based on a 17 party’s failure to prosecute an action, obey a court order, or comply with local rules. See, e.g., 18 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with a 19 court order to amend a complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 20 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 21 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). 22 Local Rule 182(f) provides that a “pro se party is under a continuing duty to notify the 23 Clerk and all other parties of any change of address …. Absent such notice, service of documents 24 at the prior address of the … pro se party shall be fully effective.” 25 In determining whether to dismiss an action, the Court must consider several factors: 26 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 27 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 1 1439, 1440 (9th Cir. 1988). 2 Analysis 3 Here, Plaintiff has failed to file an amended complaint or, alternatively, to file a notice of 4 voluntary dismissal. Plaintiff has also failed to keep the Court apprised of his current address. The 5 Court cannot effectively manage its docket if Plaintiff ceases litigating his case. Thus, the Court 6 finds that both the first and second factors—the public’s interest in expeditious resolution of 7 litigation and the Court’s need to manage its docket—weigh in favor of dismissal. Carey, 856 8 F.2d at 1440. 9 The third factor weighs in favor of dismissal since a presumption of injury arises from the 10 occurrence of unreasonable delay in prosecuting an action. Anderson v. Air W., 542 F.2d 522, 524 11 (9th Cir. 1976). Here, the Court’s First Screening Order issued February 16, 2023. (Doc. 5.) The 12 Court determined Plaintiff had failed to state any claim upon which relief could be granted. (Id. at 13 3-5.) Plaintiff was ordered to file a first amended complaint, curing the deficiencies identified in 14 the Order, within 21 days. (Id. 5.) Alternatively, Plaintiff could file a notice of voluntary 15 dismissal. (Id.) Plaintiff has failed to file a first amended complaint or a notice of voluntary 16 dismissal. Plaintiff has also failed to respond to the OSC issued March 28, 2023. (Doc. 6.) 17 Despite the return of both the screening order and the OSC by the United States Postal Service, 18 service of this Court’s orders is fully effective. See Local Rule 182(f). Plaintiff’s inaction 19 amounts to an unreasonable delay in prosecuting this action resulting in a presumption of injury. 20 Therefore, the third factor—a risk of prejudice to defendants—also weighs in favor of dismissal. 21 Carey, 856 F.2d at 1440. 22 The fourth factor usually weighs against dismissal because public policy favors 23 disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, 24 “this factor lends little support to a party whose responsibility it is to move a case toward 25 disposition on the merits but whose conduct impedes progress in that direction.” In re 26 Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) 27 (citation omitted). By failing to file an amended complaint or a notice of voluntary dismissal, 1 to keep the Court apprised of his current address is impeding the progress of this case. Without a 2 current address, as evidenced by the United States Postal Services’ return of orders served by the 3 Court, communication is impossible. Thus, the fourth factor—the public policy favoring 4 disposition of cases on their merits—weighs in favor of dismissal. Carey, 856 F.2d at 1440. 5 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 6 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262. 7 Here, the First Screening Order issued February 15, 2023, cautioned: “If Plaintiff fails to comply 8 with this order, the Court will recommend that this action be dismissed without prejudice 9 for a failure to obey a Court order.” (Doc. 5 at 6.) In the OSC issued March 28, 2023, the Court 10 stated: “WARNING: Failure to comply with this Order to Show Cause (OSC) will result in a 11 recommendation that this action be dismissed without prejudice for Plaintiff’s failure to 12 obey court orders and failure to prosecute.” (Doc. 6 at 3.) The Court’s First Informational 13 Order in Prisoner/Civil Detainee Civil Rights Case issued January 6, 2022, also advised Plaintiff 14 in relevant part: “In litigating this action, the parties must comply with this Order, the Federal 15 Rules of Civil Procedure (“Fed. R. Civ. P.”), and the Local Rules of the United States District 16 Court, Eastern District of California (“Local Rules”), as modified by this Order. Failure to so 17 comply will be grounds for imposition of sanctions which may include dismissal of the case. 18 Local Rule 110; Fed. R. Civ. P. 41(b).” (Doc. 3 at 1; see also id. at 5 [VIII. Current Address 19 Required].) Thus, Plaintiff had adequate warning that dismissal could result from his 20 noncompliance. Therefore, the fifth factor—the availability of less drastic sanctions—also weighs 21 in favor of dismissal. Carey, 856 F.2d at 1440. 22 In sum, Plaintiff has failed to comply with the Court’s orders, and in doing so, has failed 23 to prosecute this action. 24 III. CONCLUSION AND RECOMMENDATIONS 25 The Court DIRECTS the Clerk of the Court to assign a district judge to this action. 26 For the reasons given above, the undersigned RECOMMENDS that this action be 27 DISMISSED without prejudice for Plaintiff’s failure to obey court orders and failure to prosecute. 1 this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of service of these 2 Findings and Recommendations, a party may file written objections with the Court. The 3 document should be captioned, “Objections to Magistrate Judge’s Findings and 4 Recommendations.” Failure to file objections within the specified time may result in waiver of 5 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 6 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 7 IT IS SO ORDERED. 8 9 Dated: April 24, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27