(PC) Martin v. Fisher ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JARED ANDREW MARTIN, Case No. 1:22-cv-00847-JLT-EPG (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS, 11 RECOMMENDING THAT THIS CASE BE v. DISMISSED, WITHOUT PREJUDICE, 12 BECAUSE OF PLAINTIFF’S FAILURE RAYTHEL FISHER, et al., PROSECUTE THIS CASE 13 Defendants. OBJECTIONS, IF ANY, DUE WITHIN 14 FOURTEEN DAYS 15 16 17 Jared Martin (“Plaintiff”) is a prisoner (or former prisoner) proceeding pro se and in 18 forma pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. 19 On January 26, 2023, the Court issued an order denying Plaintiff’s motion to expedite 20 Court proceedings. (ECF No. 11). The order was returned as undeliverable. 21 Pursuant to Local Rule 183(b), “[a] party appearing in propria persona shall keep the 22 Court and opposing parties advised as to his or her current address. If mail directed to a 23 plaintiff in propria persona by the Clerk is returned by the U.S. Postal Service, and if such 24 plaintiff fails to notify the Court and opposing parties within sixty-three (63) days thereafter of 25 a current address, the Court may dismiss the action without prejudice for failure to prosecute.” 26 Additionally, in the First Informational Order in Prisoner/Civil Detainee Civil Rights Case the 27 Court informed Plaintiff that, “[i]f mail directed to a pro se plaintiff at the address of record is 28 returned by the United States Postal Service as undeliverable, the order will not be re−served a 1 second time absent a notice of change of address. If a pro se plaintiff's address is not updated 2 within sixty−three (63) days of mail being returned as undeliverable, the case will be dismissed 3 for failure to prosecute.” (ECF No. 2, p. 5). 4 Plaintiff’s deadline to update his address has passed, and Plaintiff has not filed a notice 5 of change of address. Accordingly, Plaintiff failed to keep the Court informed of his current 6 address as required by this Court’s local rules and the First Informational Order in 7 Prisoner/Civil Detainee Civil Rights Case. Therefore, the Court will recommend that this case 8 be dismissed, without prejudice, because of Plaintiff’s failure to prosecute this case. 9 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 10 comply with a court order, the Court must weigh the following factors: (1) the public’s interest 11 in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 12 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 13 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 14 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 15 “‘The public’s interest in expeditious resolution of litigation always favors dismissal.’” 16 Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, 17 this factor weighs in favor of dismissal. 18 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 19 determine whether the delay in a particular case interferes with docket management and the 20 public interest…. It is incumbent upon the Court to manage its docket without being subject to 21 routine noncompliance of litigants....” Id. Plaintiff has failed to keep the Court informed of his 22 current address. This failure is delaying this case and interfering with docket management. 23 Therefore, the second factor weighs in favor of dismissal. 24 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 25 and of itself to warrant dismissal.” Id. (citing Yourish, 191 F.3d at 991). However, “delay 26 inherently increases the risk that witnesses’ memories will fade and evidence will become 27 stale,” id. at 643, and it is Plaintiff’s failure to keep the Court informed of his current address 28 that is causing delay and preventing this case from progressing. The Court is unable to contact 1 Plaintiff because of Plaintiff’s failure to update his address, and the case cannot proceed 2 without Plaintiff. Therefore, the third factor weighs in favor of dismissal. 3 As for the availability of lesser sanctions, given that Plaintiff has stopped prosecuting 4 this case, despite being warned of possible dismissal, there is little available to the Court which 5 would constitute a satisfactory lesser sanction while protecting the Court from further 6 unnecessary expenditure of its scarce resources. Considering Plaintiff’s in forma pauperis 7 status, it appears that monetary sanctions are of little use. And as Plaintiff has stopped 8 prosecuting this case, excluding evidence would be a meaningless sanction. Additionally, 9 because the dismissal being considered in this case is without prejudice, the Court is stopping 10 short of using the harshest possible sanction of dismissal with prejudice. 11 Finally, because public policy favors disposition on the merits, this factor weighs 12 against dismissal. Id. 13 After weighing the factors, the Court finds that dismissal without prejudice is 14 appropriate. Accordingly, the Court HEREBY RECOMMENDS that: 15 1. This case be dismissed, without prejudice, because of Plaintiff’s failure to 16 prosecute this case; and 17 2. The Clerk of Court be directed to close this case. 18 These findings and recommendations will be submitted to the United States district 19 judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 20 fourteen (14) days after being served with these findings and recommendations, Plaintiff may 21 file written objections with the Court. The document should be captioned “Objections to 22 Magistrate Judge’s Findings and Recommendations.” 23 \\\ 24 \\\ 25 \\\ 26 \\\ 27 \\\ 28 \\\ 1 Plaintiff is advised that failure to file objections within the specified time may result in 2 || the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) 3 || (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 5 IT IS SO ORDERED. Dated: _ April 26, 2023 [see hey 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28