(PC) Harris v. Rodriguez ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARVIN HARRIS, Case No. 1:24-cv-00139-CDB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO 13 v. DISMISS ACTION WITHOUT PREJUDICE FOR PLAINTIFF’S FAILURE TO 14 S. RODRIGUEZ, et al., PROSECUTE AND TO OBEY COURT ORDERS 15 Defendants. (Doc. 3) 16 14-DAY DEADLINE 17 Clerk of the Court to Assign District Judge 18 19 Plaintiff Marvin Harris is proceeding pro se in this civil rights action brought pursuant to 20 42 U.S.C. § 1983. As of the date of this order, Plaintiff has neither filed an application to proceed 21 in forma pauperis in this action, nor has he paid the required $405.00 filing fee. 22 I. RELEVANT PROCEDURAL BACKGROUND 23 Plaintiff initiated this action with the filing of a complaint on January 31, 2024. (Doc. 1). 24 Plaintiff identified his address as Salinas Valley State Prison. Id. at 1. On February 7, 2024, the 25 Clerk of the Court served on Plaintiff case opening documents. 26 On February 12, 2024, the Court ordered Plaintiff within 45 days to either submit an 27 application to proceed in forma pauperis, completed and signed, or pay the $405.00 filing fee for 28 1 this action. (Doc. 3). The Court informed Plaintiff that failure to comply with this order would 2 result in dismissal of this action. Id. at 2. The Clerk of the Court served the order on Plaintiff on 3 February 12, 2024. 4 On February 26 and February 27, 2024, the case opening documents and the Court’s 5 February 12 order were returned, respectively, as “Undeliverable, RTS – Out to Court.” 6 Thereafter, the Court conducted a review of the online inmate locator for the California 7 Department of Corrections and Rehabilitation (“CDCR”) and learned that Plaintiff potentially 8 was housed at California Men’s Colony. (Doc. 4). Accordingly, on February 28, 2024, the Court 9 directed the Clerk of Court to re-serve copies of the case opening documents and the Court’s 10 February 12 order to Marvin Harris, California Men’s Colony, CDCR No. D99649, P.O. Box 11 8103, San Luis Obispo, CA 93409-8103. Id. 12 On March 8, 2024, the two filings identified above again were returned as “Undeliverable, 13 Out to Court.” To date, Plaintiff has neither filed an application to proceed in forma pauperis nor 14 paid the filing fee; nor has he responded to the Court’s orders or provided the Court with any 15 updated address information. 16 II. DISCUSSION 17 Plaintiff is required to keep the Court apprised of his current address at all times. Local 18 Rule 183(b) provides: 19 Address Changes. A party appearing in propria persona shall keep the Court and 20 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 21 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 22 prejudice for failure to prosecute. 23 Federal Rule of Civil Procedure 41(b) also provides for dismissal of an action for failure to 24 prosecute.1 25 According to the returned filings in this action described above, Plaintiff has not resided at 26 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) (citation 28 omitted). 1 either his originally identified address of record (Salinas Valley State Prison) or a facility 2 identified in CDCR’s online inmate locator as his current address (California Men’s Colony) for 3 more than 63 days. Thus, Plaintiff has violated Local Rule 183(b) by failing to timely file a 4 change of address or otherwise respond to this Court’s orders. 5 “In determining whether to dismiss an action for lack of prosecution, the district court is 6 required to weigh several factors: (1) the public’s interest in expeditious resolution of litigation; 7 (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 8 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 9 sanctions.” Carey v. King, 856 F.2d 1439, 1440-41. (9th Cir. 1988) (internal quotation marks & 10 citation omitted). These factors guide a court in deciding what to do and are not conditions that 11 must be met in order for a court to take action. In re Phenylpropanolamine (PPA) Products 12 Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006). 13 Plaintiff’s failure to timely file a notice of change of address weighs in favor of dismissal. 14 As summarized above, the Court attempted to communicate with Plaintiff through both the 15 address he provided when he filed complaint and through the information provided by the CDCR 16 without success. There are no other reasonable alternatives available to address Plaintiff’s failure 17 to prosecute this action and his failure to apprise the Court of his current address. Thus, the first 18 and second factors – the expeditious resolution of litigation and the Court’s need to manage its 19 docket – weigh in favor of dismissal. Carey, 856 F.2d at 1440-41; In re PPA, 460 F.3d at 1227. 20 The third factor, risk of prejudice to Defendants, also weighs fairly in favor of dismissal 21 since a presumption of injury arises from the occurrence of unreasonable delay in prosecuting an 22 action. See Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). Here, while no defendant has 23 appeared in this action, the case has been pending for more than three months. During this time, 24 Plaintiff has neither paid the $405.00 filing fee nor filed an application to proceed in forma 25 pauperis. Without a current address for Plaintiff, unreasonable delays are inevitable. Thus, the 26 third factor also weighs in favor of dismissal. Carey, 856 F.2d at 1440-41. 27 The fourth factor usually weighs against dismissal because public policy favors 28 disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, 1 “this factor lends little support to a party whose responsibility it is to move a case toward 2 disposition on the merits but whose conduct impedes progress in that direction.” In re PPA, 460 3 F.3d at 1228. Plaintiff has not moved this case forward toward disposition on the merits. He has 4 instead stopped communicating with the Court altogether. Thus, Plaintiff is impeding the progress 5 of this action. Therefore, the fourth factor also weighs in favor of dismissal. Carey, 856 F.2d at 6 1440-41. 7 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 8 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik v. Bonzelet, 963 9 F.2d 1258, 1262 (9th Cir. 1992). Although the Court acknowledges that the filings were returned 10 undeliverable, in this Court’s case opening documents, issued February 7, 2024, Plaintiff was 11 warned that a “pro se plaintiff must keep the Court and opposing parties informed of the party’s 12 correct current address,” citing Local Rule 182(f). (See Doc. 2 at 5). The Order further warned 13 that if “a pro se plaintiff’s address is not updated within sixty-three (63) days of mail being 14 returned as undeliverable, the case will be dismissed for failure to prosecute,” citing to Local Rule 15 183(b). Id. And, more generally, that same Order warned as follows: “In litigating this action, the 16 parties must comply with this Order, the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”), and 17 the Local Rules of the United States District Court, Eastern District of California (“Local Rules”), 18 as modified by this Order. Failure to so comply will be grounds for imposition of sanctions which 19 may include dismissal of case. Local Rule 110; Fed. R. Civ. P. 41(b).” Id. at 1. The Court 20 similarly admonished Plaintiff of the risk of dismissal should he fail to timely respond to the 21 Court’s February 12 order. (Doc. 3 at 2). Thus, the Court provided multiple warnings that 22 dismissal could result from his noncompliance with a Court order and this Court’s Local Rules. In 23 sum, the fifth factor weighs in favor of dismissal. Ferdik, 963 F.2d at 1262; Carey, 856 F.2d at 24 1440-41. 25 Accordingly, because Plaintiff has failed to comply with this Court’s Local Rules and the 26 Court’s orders, and in so doing is failing to prosecute his case, the Court will recommend 27 dismissal of this action. 28 / / / 1 I. CONCLUSION AND RECOMMENDATION 2 The Court DIRECTS the Clerk of the Court to assign a district judge to this action. 3 For the reasons given above, the undersigned RECOMMENDS that this action be 4 | dismissed, without prejudice, based on Plaintiff's failure to prosecute this action and failure to 5 | keep the Court apprised of his current address. Fed. R. Civ. P. 41(b); Local Rule 183(b). 6 These Findings and Recommendations will be submitted to the district judge assigned to 7 | this case, pursuant to 28 U.S.C. § 636(b)(). Within 14 days of the date of service of these 8 | Findings and Recommendations, a party may file written objections with the Court. The 9 | document should be captioned, “Objections to Magistrate Judge’s Findings and 10 | Recommendations.” Failure to file objections within the specified time may result in waiver of 11 | rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 12 | Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 13 | IT IS SO ORDERED. Dated: _May 14, 2024 | br 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28