(PC) Womack v. Gibbons ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 RODNEY JEROME WOMACK, No. 1:19-cv-00615-ADA-SAB (PC) 10 Plaintiff, ORDER TO SHOW CAUSE WHY ACTION SHOULD NOT BE DISMISSED FOR 11 v. FAILURE TO PLAINTIFF’S FAILURE TO UPDATE ADDRESS OF RECORD 12 W. GIBBONS, et al., ORDER DIRECTING PLAINTIFF TO FILE 13 Defendants. RESPONSE TO REQUESTS FOR PRODUCTION OF DOCUMENTS 14 DIRECTING CLERK OF COURT TO SERVE 15 ORDERS ON PLAINTIFF AT SALINAS VALLEY STATE PRISON 16 (ECF No. 100) 17 18 Plaintiff is appearing pro se and in forma pauperis in this civil rights action filed pursuant 19 to 42 U.S.C. § 1983. 20 On October 1, 2021 the instant action was dismissed as a discovery sanction based on 21 Plaintiff’s failure to produce discovery. (ECF Nos. 80, 81.) 22 On October 21, 2021, Plaintiff filed a notice of appeal. On July 3, 2023, the United States 23 Court of Appeals for the Ninth Circuit reversed and remanded the action finding that dismissal of 24 the action under Federal Rule of Civil Procedure 37 was improper. (ECF No. 98.) Therein, the 25 Court noted that Plaintiff “declared that he mailed a signed declaration of the eyewitnesses, as well 26 as available medical records, to defendants.” (Id. at 2.) However, Defendants “contended that they 27 had not received [Plaintiff’s] prior mailing of medical records.” (Id.) 28 1 Based on Plaintiff’s representation that he possessed and previously sent the applicable 2 discovery documents to Defendants, which Defendants contend they did not receive, the Court 3 ordered Plaintiff to respond to Defendants request for productions, without objection, within thirty 4 days of July 13, 2023. (ECF No. 100.) The Court also advised Defendants if Plaintiff failed to 5 comply with the order they could file a further motion to compel. (Id.) The Court’s July 13, 2023, 6 order was returned to the Court by the United States Postal Service as undeliverable on July 25, 7 2023. See Local Rule 182(f) (service of documents at prior address of record full effective, absent 8 notice of change of address). Because Plaintiff has not served responses to Defendants’ requests 9 for production of documents, the Court will again order that such responses be served on 10 Defendants. 11 After the thirty-day deadline passed and no motion to compel was filed, the Court issued an 12 order on August 29, 2023, setting the dispositive motion as November 28, 2023. (ECF No. 103.) 13 On September 8, 2023, the Court’s August 29, 2023, order was returned by the United States Postal 14 Service as undeliverable. 15 On September 8, 2023, Defendants Obrien and Smith filed a motion for sanctions. (ECF 16 No. 104.) On September 25, 2023, Defendants Gibbons and Gomez joined the motion. (ECF No. 17 105.) 18 Given that the Court’s orders have been returned as undeliverable to Plaintiff, it is clear 19 from the record that Plaintiff has failed to keep the Court and opposing parties advised of his current 20 address. Indeed, the Court takes judicial notice of the California Department of Corrections and 21 Rehabilitation’s inmate locator at https://inmatelocator.cdcr.ca.gov/Results.aspx which lists 22 Plaintiff’s current address of record as Salinas Valley State Prison. See In re Yahoo Mail Litig., 7 23 F. Supp. 3d. 1016, 1024 (N.D. Cal. 2014) (court may take judicial notice of information on 24 “publicly accessible websites” not subject to reasonable dispute); Louis v. McCormick & Schmick 25 Restaurant Corp., 460 F. Supp. 2d. 1153, 1155 n.4 (C.D. Cal. 2006) (court may take judicial notice 26 of state agency records). 27 /// 28 /// 1 Plaintiff is required to keep the Court apprised of his current address at all times. Local Rule 2 183(b) provides: 3 Address Changes. A party appearing in propria persona shall keep the Court and opposing 4 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 if such plaintiff fails to 5 notify the Court and opposing parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without prejudice for failure to prosecute. 6 Federal Rule of Civil Procedure 41(b) also provides for dismissal of an action for failure to 7 prosecute. 8 Plaintiff's address change was due no later than September 28, 2023. Plaintiff has failed to 9 file a change of address and he has not otherwise been in contact with the Court. “In determining 10 whether to dismiss an action for lack of prosecution, the district court is required to weigh several 11 factors: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage 12 its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 13 cases on their merits; and (5) the availability of less drastic sanctions.” Carey v. King, 856 F.2d 14 1439, 1440 (9th Cir. 1988) (internal quotation marks and citation omitted); accord Omstead v. Dell, 15 Inc., 594 F.3d 1081, 1084 (9th Cir. 2010); In re Phenylpropanolamine (PPA) Products Liability 16 Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006). These factors guide a court in deciding what to do, 17 and are not conditions that must be met in order for a court to take action. In re PPA, 460 F.3d at 18 1226 (citation omitted). 19 Based on the foregoing, it is HEREBY ORDERED that: 20 1. Plaintiff shall show cause within fourteen (14) days from the date of service of this 21 order why the action should not be dismissed for failure to prosecute; 22 2. The Clerk of Court shall serve a copy of the Court’s July 13, 2023 order (ECF No. 23 100) and a copy of the current order on Plaintiff at Salinas Valley State Prison, P.O. 24 Box 1050, Soledad, CA 93960-1050; 25 3. Within thirty (30) days from the date of service of this order and in accordance with 26 the May 3, 2021 order, Plaintiff shall filed responses to Defendants’ requests for 27 productions, without objections, along with copies of any responsive documents; 28 1 and 2 3. Plaintiff's failure to respond to this order will result in a recommendation to dismiss 3 the action for failure to prosecute. 4 5 IT IS SO ORDERED. FA. ee 6 | Dated: _ September 26, 2023 4 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28