(PC) Dijkstra v. Campos ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CODY DIJKSTRA, Case No. 1:21-cv-01223-ADA-HBK (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CASE WITHOUT PREJUDICE FOR 13 v. FAILURE TO PROSECUTE AND COMPLY WITH COURT’S LOCAL RULES1 14 CAMPOS and MAGDALENO FOURTEEN-DAY OBJECTION PERIOD 15 Defendants. 16 17 18 Plaintiff Cody Dijkstra is a state prisoner proceeding pro se in this civil rights action. For 19 the reasons set forth below, the undersigned recommends the district court dismiss this action for 20 Plaintiff’s failure to comply with a court order and prosecute this action. 21 BACKGROUND 22 Plaintiff Dijkstra, a state prisoner proceeding pro se and in forma pauperis, filed a civil 23 complaint filed under 42 U.S.C. § 1983. (Doc. No. 1). On August 24, 2022, an Order of 24 Reassignment was mailed to Plaintiff. (Doc. No. 25). On September 1, 2022, the August 24, 25 2022 Order was returned as undeliverable. (See docket). On December 14, 2022, the 26 undersigned issued an order directing Plaintiff to file a Notice of Change of Address or show 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2022). 1 good cause as to why this action should not be dismissed under Rule 41 and Local Rules 110 and 2 183. (Doc. No. 26). On December 22, 2022, the Court’s December 14, 2022 Order was returned 3 as “Undeliverable, RTS, Paroled.” (See docket). 4 APPLICABLE LAW 5 This Court’s Local Rules require litigants to keep the court apprised of their current 6 address and permits dismissal when the litigant fails to comply. Specifically: 7 “[a] party appearing in propria persona shall keep the Court and opposing parties advised as to his or her current address. If mail 8 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 9 and opposing parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without prejudice 10 for failure to prosecute.” 11 E.D. Cal. Loc. R. 183(b) (2019); see also Local Rule 182(f) (all parties are “under a continuing 12 duty” to notify the clerk of “any change of address.”). Precedent supports a dismissal of a case 13 when a litigant does not keep the court appraised on his address. Carey v. King, 856 F.2d 1439 14 (9th Cir. 1988) (affirming lower court and finding no abuse of discretion when district court 15 dismissed case without prejudice after pro se plaintiff did not comply with local rule requiring 16 pro se plaintiffs keep court apprised of addresses at all times); Hanley v. Opinski, Case No. 1:16- 17 cv-391-DAD-SAB, 2018 WL 3388510 (E.D. Ca. July 10, 2018) (dismissing action for failure to 18 prosecute and failure to provide court with current address). 19 Alternatively, Federal Rule of Civil Procedure 41(b) permits the court to involuntarily 20 dismiss an action when a litigant fails to prosecute an action or fails to comply with a court order. 21 See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 (9th Cir. 22 2019) (citations omitted); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 23 (9th Cir. 2005) (“[T]he consensus among our sister circuits, with which we agree, is that courts 24 may dismiss under Rule 41(b) sua sponte, at least under certain circumstances.”). Local Rule 110 25 similarly permits the court to impose sanctions on a party who fails to comply with any order of 26 the court. 27 Involuntary dismissal is a harsh penalty, but it “is incumbent upon the Court to manage its 28 docket without being subject to routine noncompliance of litigants.” Pagtalunan v. Galaza, 291 1 F.3d 639, 642 (9th Cir. 2002). Before dismissing an action under Fed. R. Civ. P. 41, the court 2 must consider: (1) the public interest in expeditious resolution of litigation; (2) the court’s need to 3 manage a docket; (3) the risk of prejudice to defendant; (4) public policy favoring disposition on 4 the merits; and (5) the availability of less drastic sanctions. See Applied Underwriters, 913 F.3d 5 at 889 (noting that these five factors “must” be analyzed before a Rule 41 involuntary dismissal) 6 (emphasis added); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (reviewing 7 five factors and independently reviewing the record because district court did not make finding as 8 to each factor); but see Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000) (listing 9 the same five factors, but noting the court need not make explicit findings as to each) (emphasis 10 added); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (affirming dismissal of pro se § 11 1983 action when plaintiff did not amend caption to remove “et al” as the court directed and 12 reiterating that an explicit finding of each factor is not required by the district court). 13 ANALYSIS 14 The undersigned considers each of the above-stated factors and concludes dismissing this 15 case is warranted. The expeditious resolution of litigation is deemed to be in the public interest, 16 satisfying the first factor. Yourish v. California Amplifier, 191 F.3d 983, 990–91 (9th Cir. 1999). 17 Turning to the second factor, the Court’s need to efficiently manage its docket cannot be 18 overstated. This Court has “one of the heaviest caseloads in the nation,” and due to unfilled 19 judicial vacancies, which is further exacerbated by the Covid-19 pandemic, operates under a 20 declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 21 Emergency in the Eastern District of California. The Court’s time is better spent on its other 22 matters than needlessly consumed managing a case with a recalcitrant litigant. Indeed, “trial 23 courts do not have time to waste on multiple failures by aspiring litigants to follow the rules and 24 requirements of our courts.” Pagtalunan, 291 F.3d at 644 (Trott, J., concurring in affirmance of 25 district court’s involuntary dismissal with prejudice of habeas petition where petitioner failed to 26 timely respond to court order and noting “the weight of the docket-managing factor depends upon 27 the size and load of the docket, and those in the best position to know what that is are our 28 beleaguered trial judges.”). Delays have the inevitable and inherent risk that evidence will 1 | become stale or witnesses' memories will fade or be unavailable and can prejudice a defendant, 2 | thereby satisfying the third factor. See Sibron v. New York, 392 U.S. 40, 57 (1968). Attempting a 3 | less drastic action would be futile because two different orders issued by this Court were returned 4 | as undeliverable. (See docket). Finally, the instant dismissal is a dismissal without prejudice, 5 | which is a lesser sanction than a dismissal with prejudice, thereby addressing the fifth factor. 6 | Further, contrary to Local Rule 183(b), more than 63 days have passed since this Court’s August 7 | 24, 2022 Order was returned as undeliverable and Plaintiff has not updated his address or 8 | otherwise contacted the Court. Thus, Plaintiff appears to have abandoned this action. 9 Considering these factors and those set forth supra, as well as binding case law, the 10 | undersigned recommends dismissal, without prejudice, under Fed. R. Civ. P. 41(b) and Local 11 | Rule 183(b). 12 Accordingly, it is RECOMMENDED: 13 This case be dismissed without prejudice for Plaintiff's failure to prosecute this action 14 | and/or comply with the Court’s order under Fed. R. Civ. P. 41 and Local Rule 110. 15 NOTICE TO PARTIES 16 These findings and recommendations will be submitted to the United States district judge 17 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 18 || days after being served with these findings and recommendations, a party may file written 19 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 20 | Findings and Recommendations.” Parties are advised that failure to file objections within the 21 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 22 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 23 Dated: _ January 3, 2023 law ZA. foareh Back 24 HELENA M. BARCH-KUCHTA 35 UNITED STATES MAGISTRATE JUDGE 26 27 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28