(PC) Johnson v. Unknown ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID JOHNSON, Case No. 1:22-cv-00582-BAM (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATIONS 14 UNKNOWN, REGARDING DISMISSAL OF ACTION FOR FAILURE TO PROSECUTE AND FAILURE 15 Defendant. TO OBEY A COURT ORDER 16 (ECF No. 7) 17 FOURTEEN (14) DAY DEADLINE 18 19 I. Background 20 Plaintiff David Johnson (“Plaintiff”) is a state prisoner proceeding pro se in this civil 21 rights action under 42 U.S.C. § 1983. Plaintiff initiated this action on February 22, 2022 in the 22 United States District Court for the Central District of California. (ECF No. 1.) This action was 23 transferred to the Eastern District of California on May 12, 2022. (ECF No. 4.) 24 New case documents were issued on May 16, 2022. (ECF No. 6.) On May 17, 2022, the 25 Court issued an order directing Plaintiff to file an application to proceed in forma pauperis or pay 26 the filing fee for this action, and to file a signed complaint or a notice of voluntary dismissal, 27 within forty-five days. (ECF No. 7.) The new case documents and the Court’s order were served 28 on Plaintiff at his current address of record. In that order, Plaintiff was warned that the failure to 1 comply with the Court’s order would result in dismissal of this action, without prejudice. (Id. at 2 2.) 3 On May 25, 2022, the new case documents were returned as “Undeliverable, Inactive, 4 Return to Sender Attempted – Not Known, Unable to Forward,” and on May 31, 2022 the Court’s 5 order was returned as “Undeliverable, Inactive.” 6 The deadline for Plaintiff to respond to the Court’s order has now expired, and Plaintiff 7 has not filed a notice of change of address or otherwise communicated with the Court. 8 II. Failure to Prosecute and Failure to Obey a Court Order 9 A. Legal Standard 10 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 11 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 12 within the inherent power of the Court.” District courts have the inherent power to control their 13 dockets and “[i]n the exercise of that power they may impose sanctions including, where 14 appropriate, . . . dismissal.” Thompson v. Hous. Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 15 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 16 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 17 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 18 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 19 amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 1987) 20 (dismissal for failure to comply with court order). 21 In determining whether to dismiss an action, the Court must consider several factors: 22 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 23 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 24 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 25 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 26 B. Discussion 27 Here, Plaintiff’s response to the Court’s May 17, 2022 order is overdue and he has failed 28 to comply with the Court’s order. The Court cannot effectively manage its docket if Plaintiff 1 ceases litigating his case. Thus, the Court finds that both the first and second factors weigh in 2 favor of dismissal. 3 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, since a 4 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 5 Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against 6 dismissal because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 7 639, 643 (9th Cir. 2002). However, “this factor lends little support to a party whose 8 responsibility it is to move a case toward disposition on the merits but whose conduct impedes 9 progress in that direction,” which is the case here. In re Phenylpropanolamine (PPA) Products 10 Liability Litigation, 460 F.3d 1217, 1228 (9th Cir. 2006) (citation omitted). 11 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 12 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 13 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. Plaintiff was warned in the new case 14 documents that he must keep the Court and opposing parties informed of his correct current 15 address, and if a party moves to a different address without filing and serving a notice of change 16 of address, documents served at the old address of record shall be deemed received even if not 17 actually received. (ECF No. 6, p. 5.) Further, the Court’s May 17, 2022 order expressly warned 18 Plaintiff that his failure to comply with the Court’s order would result in a recommendation of 19 dismissal of this action, without prejudice. (ECF No. 7, p. 2.) Thus, Plaintiff had adequate 20 warning that dismissal could result from his noncompliance. 21 Additionally, at this stage in the proceedings there is little available to the Court that 22 would constitute a satisfactory lesser sanction while protecting the Court from further 23 unnecessary expenditure of its scarce resources. Plaintiff is likely to proceed in forma pauperis in 24 this action, making monetary sanctions of little use, and the preclusion of evidence or witnesses is 25 likely to have no effect given that Plaintiff has ceased litigating his case and updating his address. 26 III. Order and Recommendation 27 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a 28 district judge to this action. 1 Furthermore, the Court finds that dismissal is the appropriate sanction and HEREBY 2 RECOMMENDS that this action be dismissed, without prejudice, for failure to obey a Court 3 order and for Plaintiff’s failure to prosecute this action. 4 These Findings and Recommendation will be submitted to the United States District Judge 5 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 6 (14) days after being served with these Findings and Recommendation, Plaintiff may file written 7 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 8 Findings and Recommendation.” Plaintiff is advised that failure to file objections within the 9 specified time may result in the waiver of the “right to challenge the magistrate’s factual 10 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 11 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 12 IT IS SO ORDERED. 13 14 Dated: August 3, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28