(PC) Ausborn v. Kern County Sheriff Dept. ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RANDY AUSBORN, Case No.: 1:22-cv-00210-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO 13 v. DISMISS ACTION FOR FAILURE TO PROSECUTE AND FAILURE TO OBEY 14 KERN COUNTY SHERIFF DEPT., et al., COURT ORDERS 15 Defendant. 14-DAY DEADLINE 16 Clerk to Assign District Judge 17 Plaintiff Randy Ausborn, a pretrial detainee, is appearing pro se in this civil rights action 18 brought pursuant to 42 U.S.C. § 1983. 19 I. RELEVANT PROCEDURAL BACKGROUND 20 On March 16, 2022, Plaintiff filed his First Amended Complaint, (Doc. 10), and an 21 Application to Proceed In Forma Pauperis (“IFP”) by a Prisoner (Doc. 11). 22 On March 17, 2022, the Court issued its Order to Submit Inmate Trust Statement, 23 providing Plaintiff 30 days within which to provide an inmate trust statement. (Doc. 12.) The 24 Court also issued its Order Regarding Plaintiff’s Miscellaneous Requests on March 17, 2022. 25 (Doc. 13.) 26 // 27 // 1 On April 4, 2022, Plaintiff submitted a Second Amended Complaint, (Doc. 15), and two 2 separate applications to proceed IFP (See Docs. 16 & 17). Plaintiff did not submit an inmate trust 3 statement. 4 On April 25, 2022, the Court issued its Order Regarding Plaintiff’s Pending Applications 5 for Leave to Proceed In Forma Pauperis. (Doc. 21.) The Court identified the various deficiencies 6 in Plaintiff’s previous submissions. (Id. at 2-3.) Plaintiff was ordered to submit a “single, 7 properly completed IFP application with the Court” no later than May 27, 2022. (Id. at 3.)1 8 Plaintiff failed to comply with the Court’s order. A clerk’s docket entry dated May 2, 2022, 9 indicates this Order was returned marked “Undeliverable, Return to Sender, Refused, Unable to 10 Forward.” 11 On June 7, 2022, the Court issued an Order to Show Cause (“OSC”) why this action 12 should not be dismissed for Plaintiff’s failure to obey court orders and failure to prosecute. (Doc. 13 22.) Plaintiff was given 21 days within which to respond to the OSC. (Id. at 2.) More than 21 days 14 have passed, and Plaintiff has failed to respond. The clerk’s docket entry dated June 21, 2022, 15 also indicates the OSC was returned marked “Undeliverable, Return to Sender, Unable to 16 Forward.” 17 As of today’s date, Plaintiff has not filed an updated notice of change of address or 18 otherwise provided the Court with updated contact information. 19 II. DISCUSSION 20 A. Legal Standard 21 The Local Rules, corresponding with Federal Rule of Civil Procedure 11, provide, 22 “[f]ailure of counsel or of a party to comply with … any order of the Court may be grounds for 23 the imposition by the Court of any and all sanctions … within the inherent power of the Court.” 24 Local Rule 110. “District courts have inherent power to control their dockets” and, in exercising 25 that power, may impose sanctions, including dismissal of an action. Thompson v. Housing Auth., 26 City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based on a 27 1 The Clerk of the Court was also directed to provide Plaintiff with a blank Application to Proceed In Forma Pauperis by Prisoner form. (Doc. 21 at 3.) 1 party’s failure to prosecute an action, obey a court order, or comply with local rules. See, e.g., 2 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with a 3 court order to amend a complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 4 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 5 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). 6 In determining whether to dismiss an action, the Court must consider several factors: 7 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 8 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 9 cases on their merits; and (5) the availability of less drastic sanctions. Henderson, 779 F.2d at 10 1423; Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 11 A party is required to keep the Court apprised of his or her current address at all times. 12 Local Rule 183(b) provides: 13 Address Changes. A party appearing in propria persona shall keep the Court and 14 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 15 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 16 prejudice for failure to prosecute. 17 B. Analysis 18 Here, Plaintiff has failed to file a properly completed IFP application despite being 19 ordered to do so on April 25, 2022. (Doc. 21.) Plaintiff has also failed to respond to this Court’s 20 OSC of June 7, 2022. (Doc. 22.) The Court cannot effectively manage its docket if Plaintiff 21 ceases litigating his case. Thus, the Court finds that both the first and second factors weigh in 22 favor of dismissal. Henderson, 779 F.2d at 1423; Carey v. King, 856 F.2d at 1440. 23 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal since a 24 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 25 Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). More than 60 days have passed since the 26 Court ordered Plaintiff to provide the information necessary for its determination regarding 27 Plaintiff’s IFP status. Plaintiff’s inaction amounts to an unreasonable delay in prosecuting this 1 542 F.2d at 524; Henderson, 779 F.2d at 1423; Carey v. King, 856 F.2d at 1440. 2 The fourth factor usually weighs against dismissal because public policy favors 3 disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, 4 “this factor lends little support to a party whose responsibility it is to move a case toward 5 disposition on the merits but whose conduct impedes progress in that direction,” which is the case 6 here because Plaintiff has failed to move his case forward. In re Phenylpropanolamine (PPA) 7 Products Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted); Henderson 8 v. Duncan, 779 F.2d at 1424. 9 Regarding the last factor, a court’s warning to a party that failure to obey the court’s order 10 will result in dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 11 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. In its April 25, 2022 12 Order, the Court stated: “Plaintiff is warned that the failure to comply with this order will 13 result in a recommendation that this action be dismissed.” (Doc. 21 at 4.) The Court’s OSC of 14 June 7, 2022, also included the following: “WARNING: Failure to comply with this order will 15 result in a recommendation that this action be dismissed for failure to obey court orders 16 and for a failure to prosecute.” (Doc. 22 at 3.) Thus, the fifth factor weighs in favor of dismissal 17 because Plaintiff has received adequate warning that dismissal could result from his 18 noncompliance. 19 Finally, Plaintiff has failed to keep the Court apprised of his current address as required by 20 Local Rule 183(b). According to the Court’s docket, mail directed to Plaintiff was returned to the 21 Court on May 2, 2022. More than 63 days have passed and Plaintiff has failed to file a change of 22 address with the Court. Given the Court’s apparent inability to communicate with Plaintiff, there 23 are no other reasonable alternatives available to address Plaintiff’s failure to prosecute this action 24 and his failure to apprise the Court of his current address. In re PPA, 460 F.3d at 1228–29; 25 Carey, 856 F.2d at 1441. The undersigned will recommend that this action be dismissed, without 26 prejudice, for Plaintiff’s failure to prosecute this action and for his failure to obey court orders. 27 // 1 III. CONCLUSION AND RECOMMENDATION 2 For the reasons set forth above, the Court RECOMMENDS that this action be 3 DISMISSED, without prejudice, for Plaintiff’s failure to prosecute and failure to obey court 4 orders. 5 These Findings and Recommendations will be submitted to the United States District 6 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 7 of the date of service of these Findings and Recommendations, Plaintiff may file written 8 objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 9 Findings and Recommendations.” Plaintiff’s failure to file objections within the specified time 10 may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 11 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 12 IT IS SO ORDERED. 13 14 Dated: July 7, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27