(PC) Nuno v. Tulare County Sheriff Department ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LUIS NUNO, Case No.: 1:22-cv-00647-CDB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. TO DISMISS FOR PLAINTIFF’S FAILURE TO OBEY COURT ORDER AND FAILURE 14 TULARE COUNTY SHERIFF TO PROSECUTE DEPARTMENT, et al., 15 Clerk of the Court to Assign District Judge Defendant. 16 17 18 Plaintiff Luis Nuno is proceeding pro se and in forma pauperis in this civil rights action 19 brought pursuant to 42 U.S.C. § 1983. 20 I. RELEVANT PROCEDURAL BACKGROUND 21 Plaintiff initiated this action with the filing of his complaint on May 31, 2022. (Doc. 1.) 22 On July 26, 2022, following preliminary actions to update certain information concerning 23 Plaintiff’s pending application (see Docs. 5, 7, 8, 9), the Court issued its Order Granting 24 Plaintiff’s Application to Proceed In Forma Pauperis and Order Directing Payment of Inmate 25 Filing Fee by the Tulare County Sheriff. (Doc. 10.) 26 On August 1, 2022, Plaintiff filed a Notice of Change of Address, advising the Court of a 27 move from the South County Detention Facility in Porterville to a new address at the Adult 1 On October 6, 2022, the Court issued an Order of Reassignment, reassigning this matter 2 from the temporarily assigned magistrate judge to the undersigned for all further proceedings. 3 (Doc. 14.) 4 October 21, 2022, the Order of Reassignment was returned by the U.S. Postal Service 5 marked Undeliverable, Not Deliverable as Addressed, and Unable to Forward. (Docket Entry 6 dated 10/21/22.) 7 II. DISCUSSION 8 Plaintiff is required to keep the Court apprised of his current address at all times. Local 9 Rule 183(b) provides: 10 Address Changes. A party appearing in propria persona shall keep the Court and 11 opposing 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 12 if such plaintiff fails to notify the Court and opposing parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without 13 prejudice for failure to prosecute. 14 Federal Rule of Civil Procedure 41(b) also provides for dismissal of an action for failure to 15 prosecute.1 16 According to the Court’s docket, following the return of legal mail on October 21, 2022, 17 Plaintiff’s address change was due no later than December 30, 2022. More than 63 days have now 18 passed, and Plaintiff has failed to file a change of address. Therefore, Plaintiff has failed to 19 comply with this Court’s Local Rules and has failed to prosecute this action. 20 “In determining whether to dismiss an action for lack of prosecution, the district court is 21 required to weigh several factors: (1) the public’s interest in expeditious resolution of litigation; 22 (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 23 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 24 sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (internal quotation marks & 25 citation omitted). These factors guide a court in deciding what to do and are not conditions that 26 must be met in order for a court to take action. In re Phenylpropanolamine (PPA) Products 27 1 Courts may dismiss actions sua sponte under Rule 41(b) based on the plaintiff’s failure to prosecute. Hells Canyon Pres. Council v. U. S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) 1 Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (citation omitted). 2 Plaintiff’s failure to file a notice of change of address following the return of legal mail 3 directed to Plaintiff at his current address on record with this Court weighs in favor of dismissal. 4 This is particularly so where Plaintiff has previously notified the Court of a change in address. 5 (See Doc. 12.) Given the Court’s inability to communicate with Plaintiff, there are no other 6 reasonable alternatives available to address Plaintiff’s failure to prosecute this action and his 7 failure to apprise the Court of his current address. Thus, the first and second factors — the 8 expeditious resolution of litigation and the Court’s need to manage its docket — weigh in favor of 9 dismissal. Carey, 856 F.2d at 1440. 10 The third factor, risk of prejudice to defendant, also weighs fairly in favor of dismissal 11 since a presumption of injury arises from the occurrence of unreasonable delay in prosecuting an 12 action. See Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). Here, while no defendant has 13 appeared in this action, the case has been pending for more than seven months. Thus, the third 14 factor also weighs in favor of dismissal. Carey, 856 F.2d at 1440. 15 The fourth factor usually weighs against dismissal because public policy favors 16 disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, 17 “this factor lends little support to a party whose responsibility it is to move a case toward 18 disposition on the merits but whose conduct impedes progress in that direction.” In re PPA, 460 19 F.3d at 1228. Plaintiff has stopped moving this case forward toward disposition on the merits. He 20 has instead ceased communicating with the Court altogether. Therefore, the fourth factor also 21 weighs in favor of dismissal. Carey, 856 F.2d at 1440. 22 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 23 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik v. Bonzelet, 963 24 F.2d 1258, 1262 (9th Cir. 1992). In this Court’s First Informational Order In Prisoner/Civil 25 Detainee Civil Rights Case, issued June 1, 2022, Plaintiff was warned that a “pro se plaintiff must 26 keep the Court and opposing parties informed of the party’s correct current address,” citing Local 27 Rule 182(f). (See Doc. 3 at 5.) The Order further warned that if “a pro se plaintiff’s address is not 1 | dismissed for failure to prosecute,” citing to Local Rule 183(b). (/d.) Further, it e reasonably can 2 | b inferred from Plaintiffs notice to this Court concerning a previous change in address (see Doc. 3 | 12), that Plaintiff □□ aware of his obligation to keep the Court so apprised. Thus, the undersigned 4 | finds Plaintiff had adequate warning that dismissal could result from his noncompliance with a 5 | Court order and this Court’s local rules. In sum, the fifth factor weighs in favor of dismissal. 6 | Ferdick, 963 F.2d at 1262; Carey, 856 F.2d at 1440. 7 I. CONCLUSION AND RECOMMENDATION 8 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a 9 | district judge to this action. 10 Furthermore, the Court HEREBY RECOMMENDS that this action be dismissed, without 11 | prejudice, based on Plaintiffs failure to prosecute this action and failure to keep the Court 12 || apprised of his current address. Fed. R. Civ. P. 41(b); Local Rule 183(b). 13 These Findings and Recommendations will be submitted to the United States District 14 || Judge assigned to the case, under the provisions of 28 U.S.C. § 636(b)(). Within 14 days after 15 || being served with these Findings and Recommendations, Plaintiff may file written objections 16 | with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings 17 || and Recommendations.” Plaintiff is advised that failure to file objections within the specified 18 | time may result in the waiver of the “right to challenge the magistrate’s factual findings” on 19 | appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 20 | F.2d 1391, 1394 (9th Cir. 1991)). 21 | IT IS SO ORDERED. ** | Dated: _ January 4, 2023 | Wr bo 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28