1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 10 AMA BAHATI BERNARD, Case No.: 20-cv-01176-BAS-RBM 11 Inmate Booking No. 19764329, ORDER DISMISSING ACTION FOR 12 Plaintiff, FAILURE TO PROSECUTE 13 v. 14 SAN DIEGO SHERIFF’S DEP’T; SHERIFF’S DEPUTY MORA, 15 Defendants. 16 17 Plaintiff Ama Bahati Bernard filed this pro se action on June 25, 2020, alleging that 18 his civil rights were violated by personnel at the facility where he presently resided, San 19 Diego Central Jail (“SDCJ”). (ECF No. 1.) Despite being permitted to proceed with his 20 case against Defendant Mora on July 14, 2020, Plaintiff has failed to keep the Court 21 apprised of his current address and has consequently failed to timely serve Defendant Mora 22 and comply with the Court’s orders in this case. Accordingly, for the reasons discussed 23 below, the Court exercises its inherent authority to dismiss Plaintiff’s action. 24 I. BACKGROUND 25 In its July 14, 2020 Screening Order, the Court found that Plaintiff had failed to state 26 a claim against the San Diego Sheriff’s Department but contained sufficient factual 27 allegations against Defendant Mora to survive screening. (ECF No. 3.) The Court 28 instructed Plaintiff to complete the USM Form 285s with Defendant Mora’s information 1 and return them to the U.S. Marshals, who were directed to complete service. (Id.) A 2 summons was issued the following day on July 14, 2020. (ECF No. 4.) On August 26, 3 2020, both the Screening Order and Summons were returned as undeliverable, noting that 4 the mail was both “unclaimed” and “refused” at Plaintiff’s address of record. (ECF No. 5.) 5 On November 5, 2020, the Court issued an Order to Show Cause (“OSC”) why the 6 case should not be dismissed on two grounds: Plaintiff’s failure to timely notify the Court 7 of his address under Civil Local Rule 83.11(b) and Plaintiff’s failure to show that service 8 on Defendant Mora had been completed in the 90-day period established by Federal Rule 9 of Civil Procedure 4(m). (ECF No. 6.) Plaintiff was required to show cause by November 10 30, 2020 and warned that failure to timely file a response to this OSC would result in the 11 Court dismissing this action.1 (OSC at 2.) 12 II. LEGAL STANDARD 13 “District courts have the inherent power to control their dockets and, ‘[i]n the 14 exercise of that power, they may impose sanctions including, where appropriate . . . 15 dismissal of a case.’” Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (quoting 16 Thompson v. Hous. Auth. of L.A., 782 F.2d 829, 831 (9th Cir.), cert. denied, 475 U.S. 829 17 (1986); accord Link v. Wabash, R.R. Co., 370 U.S. 626, 630–31 (1962) (holding courts are 18 vested with an inherent power “to manage their own affairs so as to achieve the orderly and 19 expeditious disposition of cases.”) Although due process generally requires that the party 20 have notice and the opportunity to be heard before dismissal, when a party may be said to 21 have knowledge of the consequences of his failure to act, the court may dispense with the 22 necessity for advance notice and a hearing. Link, 370 U.S. at 630-32. 23 “Despite this authority, dismissal is a harsh penalty and, therefore, it should only be 24 imposed in extreme circumstances.” Ferdik, 963 F.2d at 1260. Therefore, to determine 25 whether dismissal under its inherent authority is appropriate, “the district court must weigh 26
27 1 The Court’s OSC was not returned to the Court as undeliverable. However, a search using of the SDCJ’s inmate locator (https://apps.sdsheriff.net/wij/wij.aspx) has not yielded any results for an individual named 28 1 five factors, including: (1) the public’s interest in expeditious resolution of litigation; (2) 2 the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the 3 public policy favoring disposition of cases on their merits; and (5) the availability of less 4 drastic alternatives.” Id. at 1260–61 (internal quotations omitted). 5 Generally, these five factors weigh in favor of sua sponte dismissal where a plaintiff 6 has failed to prosecute a case or comply with an order of the court. See Eldridge v. Block, 7 832 F.2d 1132, 1136 (9th Cir. 1987); Hells Canyon Preservation Council v. U.S. Forest 8 Serv., 403 F.3d 683, 689 (9th Cir. 2005). Further, “[f]ailure to follow a district court’s local 9 rules is a proper ground for dismissal.” Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). 10 III. ANALYSIS 11 After weighing the five factors below, the Court finds that dismissal of this action is 12 warranted because Plaintiff has not demonstrated compliance with this district’s Local 13 Rules, the service requirements under the Federal Rules of Civil Procedure, and this Court’s 14 OSC. 15 A. Public’s Interest In Expeditious Resolution 16 “[T]he public’s interest in expeditious resolution of litigation always favors 17 dismissal.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). In this case, 18 Plaintiff’s inaction has undermined expeditious resolution. First, this case has been 19 pending for six months without the appearance of an adverse party or any demonstration 20 by Plaintiff that the adverse party was properly served. Second, the Court’s attempts to 21 prompt Plaintiff to complete this step has been wholly impeded by Plaintiff’s failure to 22 either accept his mail at SDCJ or to update his address with the Court. The Court cannot 23 await indefinitely Plaintiff’s response to the Court’s directive to file a proof of service or 24 his compliance with the Local Rule requiring him to update his address. Thus, the Court 25 finds that this factor weighs in favor of dismissal. 26 B. Court’s Need to Manage its Docket 27 In this case, Plaintiff has not shown that the adverse parties have been notified of the 28 action against them. The Court nonetheless provided Plaintiff with another opportunity, 1 outside the 90-day time limit, to complete service. However, because Plaintiff has, again, 2 either refused his mail or failed to keep the Court apprised of his current address, the Court 3 has been unable to communicate this to him. 4 A district court is in the best position to determine whether the delay in a particular 5 case interferes with docket management and the public interest. Ash v. Cuetkov, 739 F.2d 6 493, 496 (9th Cir. 1984). The Court finds that Plaintiff’s failure to complete these 7 fundamental steps has resulted in continued delays in the prosecution of this case and has 8 “impermissibly allowed [P]laintiff to control the pace of the docket rather than the [C]ourt.” 9 See Smith v. Cty. Of Riverside Sheriff Dep’t, No. ED CV 17-1969 DSF (SP), 2019 WL 10 7865170, at *3 (C.D. Cal. Nov. 18, 2019) (citing Pagtalunan v. Galaza, 291 F.3d 639, 642 11 (9th Cir. 2002) (“It is incumbent upon the Court to manage its docket without being subject 12 to routine noncompliance of litigants.”)). Consequently, this factor also weighs in favor of 13 dismissal. 14 C.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 10 AMA BAHATI BERNARD, Case No.: 20-cv-01176-BAS-RBM 11 Inmate Booking No. 19764329, ORDER DISMISSING ACTION FOR 12 Plaintiff, FAILURE TO PROSECUTE 13 v. 14 SAN DIEGO SHERIFF’S DEP’T; SHERIFF’S DEPUTY MORA, 15 Defendants. 16 17 Plaintiff Ama Bahati Bernard filed this pro se action on June 25, 2020, alleging that 18 his civil rights were violated by personnel at the facility where he presently resided, San 19 Diego Central Jail (“SDCJ”). (ECF No. 1.) Despite being permitted to proceed with his 20 case against Defendant Mora on July 14, 2020, Plaintiff has failed to keep the Court 21 apprised of his current address and has consequently failed to timely serve Defendant Mora 22 and comply with the Court’s orders in this case. Accordingly, for the reasons discussed 23 below, the Court exercises its inherent authority to dismiss Plaintiff’s action. 24 I. BACKGROUND 25 In its July 14, 2020 Screening Order, the Court found that Plaintiff had failed to state 26 a claim against the San Diego Sheriff’s Department but contained sufficient factual 27 allegations against Defendant Mora to survive screening. (ECF No. 3.) The Court 28 instructed Plaintiff to complete the USM Form 285s with Defendant Mora’s information 1 and return them to the U.S. Marshals, who were directed to complete service. (Id.) A 2 summons was issued the following day on July 14, 2020. (ECF No. 4.) On August 26, 3 2020, both the Screening Order and Summons were returned as undeliverable, noting that 4 the mail was both “unclaimed” and “refused” at Plaintiff’s address of record. (ECF No. 5.) 5 On November 5, 2020, the Court issued an Order to Show Cause (“OSC”) why the 6 case should not be dismissed on two grounds: Plaintiff’s failure to timely notify the Court 7 of his address under Civil Local Rule 83.11(b) and Plaintiff’s failure to show that service 8 on Defendant Mora had been completed in the 90-day period established by Federal Rule 9 of Civil Procedure 4(m). (ECF No. 6.) Plaintiff was required to show cause by November 10 30, 2020 and warned that failure to timely file a response to this OSC would result in the 11 Court dismissing this action.1 (OSC at 2.) 12 II. LEGAL STANDARD 13 “District courts have the inherent power to control their dockets and, ‘[i]n the 14 exercise of that power, they may impose sanctions including, where appropriate . . . 15 dismissal of a case.’” Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (quoting 16 Thompson v. Hous. Auth. of L.A., 782 F.2d 829, 831 (9th Cir.), cert. denied, 475 U.S. 829 17 (1986); accord Link v. Wabash, R.R. Co., 370 U.S. 626, 630–31 (1962) (holding courts are 18 vested with an inherent power “to manage their own affairs so as to achieve the orderly and 19 expeditious disposition of cases.”) Although due process generally requires that the party 20 have notice and the opportunity to be heard before dismissal, when a party may be said to 21 have knowledge of the consequences of his failure to act, the court may dispense with the 22 necessity for advance notice and a hearing. Link, 370 U.S. at 630-32. 23 “Despite this authority, dismissal is a harsh penalty and, therefore, it should only be 24 imposed in extreme circumstances.” Ferdik, 963 F.2d at 1260. Therefore, to determine 25 whether dismissal under its inherent authority is appropriate, “the district court must weigh 26
27 1 The Court’s OSC was not returned to the Court as undeliverable. However, a search using of the SDCJ’s inmate locator (https://apps.sdsheriff.net/wij/wij.aspx) has not yielded any results for an individual named 28 1 five factors, including: (1) the public’s interest in expeditious resolution of litigation; (2) 2 the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the 3 public policy favoring disposition of cases on their merits; and (5) the availability of less 4 drastic alternatives.” Id. at 1260–61 (internal quotations omitted). 5 Generally, these five factors weigh in favor of sua sponte dismissal where a plaintiff 6 has failed to prosecute a case or comply with an order of the court. See Eldridge v. Block, 7 832 F.2d 1132, 1136 (9th Cir. 1987); Hells Canyon Preservation Council v. U.S. Forest 8 Serv., 403 F.3d 683, 689 (9th Cir. 2005). Further, “[f]ailure to follow a district court’s local 9 rules is a proper ground for dismissal.” Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). 10 III. ANALYSIS 11 After weighing the five factors below, the Court finds that dismissal of this action is 12 warranted because Plaintiff has not demonstrated compliance with this district’s Local 13 Rules, the service requirements under the Federal Rules of Civil Procedure, and this Court’s 14 OSC. 15 A. Public’s Interest In Expeditious Resolution 16 “[T]he public’s interest in expeditious resolution of litigation always favors 17 dismissal.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). In this case, 18 Plaintiff’s inaction has undermined expeditious resolution. First, this case has been 19 pending for six months without the appearance of an adverse party or any demonstration 20 by Plaintiff that the adverse party was properly served. Second, the Court’s attempts to 21 prompt Plaintiff to complete this step has been wholly impeded by Plaintiff’s failure to 22 either accept his mail at SDCJ or to update his address with the Court. The Court cannot 23 await indefinitely Plaintiff’s response to the Court’s directive to file a proof of service or 24 his compliance with the Local Rule requiring him to update his address. Thus, the Court 25 finds that this factor weighs in favor of dismissal. 26 B. Court’s Need to Manage its Docket 27 In this case, Plaintiff has not shown that the adverse parties have been notified of the 28 action against them. The Court nonetheless provided Plaintiff with another opportunity, 1 outside the 90-day time limit, to complete service. However, because Plaintiff has, again, 2 either refused his mail or failed to keep the Court apprised of his current address, the Court 3 has been unable to communicate this to him. 4 A district court is in the best position to determine whether the delay in a particular 5 case interferes with docket management and the public interest. Ash v. Cuetkov, 739 F.2d 6 493, 496 (9th Cir. 1984). The Court finds that Plaintiff’s failure to complete these 7 fundamental steps has resulted in continued delays in the prosecution of this case and has 8 “impermissibly allowed [P]laintiff to control the pace of the docket rather than the [C]ourt.” 9 See Smith v. Cty. Of Riverside Sheriff Dep’t, No. ED CV 17-1969 DSF (SP), 2019 WL 10 7865170, at *3 (C.D. Cal. Nov. 18, 2019) (citing Pagtalunan v. Galaza, 291 F.3d 639, 642 11 (9th Cir. 2002) (“It is incumbent upon the Court to manage its docket without being subject 12 to routine noncompliance of litigants.”)). Consequently, this factor also weighs in favor of 13 dismissal. 14 C. Prejudice to the Defendants 15 “To prove prejudice, a defendant must establish that plaintiff’s actions impaired 16 defendant’s ability to proceed to trial or threatened to interfere with the rightful decision of 17 the case.” Pagtalunan, 291 F.3d at 642 (citing Malone v. U.S. Postal Serv., 833 F.2d 128, 18 131 (9th Cir. 1987)). “[T]he pendency of the lawsuit is not sufficiently prejudicial itself to 19 warrant dismissal.” Yourish, 191 F.3d at 991; accord Ash, 739 F.2d at 496. However, 20 “even in the absence of a showing of actual prejudice to the defendant,” prejudice is 21 presumed from unreasonable delay. In re Eisen, 31 F.3d 1447, 1452–53 (9th Cir. 1994); 22 see also Anderson v. Air W., Inc., 542 F.2d 522, 524 (9th Cir. 1976) (“The law presumes 23 injury from unreasonable delay.”). 24 “Whether prejudice is sufficient to support an order of dismissal is in part judged 25 with reference to the strength of the plaintiff's excuse for the default.” Malone v. U.S. 26 Postal Serv., 833 F.2d 128, 131 (9th Cir. 1987). However, because Plaintiff has not been 27 responsive to the Court’s orders, Plaintiff’s reasons for failing to prosecute the action are 28 unknown. See Garcia v. Fed. Bureau of Prisons, No. 5:19-CF-00008-PSG-MAA, 2019 1 WL 6040412, at *4 (C.D. Cal. Oct. 21, 2019), report and recommendation adopted, No. 2 5:19-CF-00008-PSG-MAA, 2019 WL 6039943 (C.D. Cal. Nov. 12, 2019). Because the 3 presumption of prejudice arises from a plaintiff’s unexplained failure to prosecute, the third 4 factor favors dismissal. See id. at *4 (citing Laurino v. Syringa Gen. Hosp., 279 F.3d 750, 5 753 (9th Cir. 2002)). 6 D. Public Policy 7 Public policy favors disposition of cases on the merits. Pagtalunan, 291 F.3d at 643. 8 The Court recognizes that this factor weighs against dismissal. 9 E. Availability of Less Drastic Alternatives 10 This factor examines whether less drastic alternatives to dismissal are feasible given 11 the circumstances of the case. In re Eisen, 31 F.3d at 1455. “[A] district court’s warning 12 to a party that [its] failure to obey the court’s order will result in dismissal can satisfy the 13 ‘consideration of alternatives’ requirement.” Ferdik, 963 F.2d at 1262. 14 As stated above, the Court has made an effort to reach Plaintiff at his address of 15 record. Because Plaintiff has not informed the Court about any other addresses where he 16 can be reached, the Court finds that less drastic alternatives to dismissal are not available 17 in these circumstances. See Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988) (concluding 18 that there was no less drastic sanction available than dismissal where mail addressed to 19 plaintiff was returned by the post office as undeliverable and plaintiff did not provide 20 updated address to court). As a result, this factor weighs in favor of dismissal. 21 On balance, four out of five factors weigh in favor of dismissal. Accordingly, the 22 Court exercises its inherent authority to dismiss Plaintiff’s complaint without prejudice. 23 See O’Brien v. Visa USA, Inc., 225 F. App’x 677, 678 (9th Cir. 2007) (unpublished) 24 (affirming dismissal for failure to prosecute where plaintiff “did not establish that he served 25 process on any defendant within” the time period prescribed in Rule 4(m)); Shakar R. v. 26 Saul, No. 5:19-01716 FMO (ADS), 2020 WL 2319877, at *1 (C.D. Cal. May 11, 2020) 27 (dismissing for failure to file a proof of service or comply with an OSC requiring the same); 28 Turner v. Cortez, No. 1:11-CV-00884-BAM PC, 2012 WL 3132671, at *2 (E.D. Cal. July 1 2012) (dismissing action because plaintiff did not notify the court of his change of 2 || address). 3 || IV. CONCLUSION AND ORDER 4 Accordingly, the Court DISMISSES WITHOUT PREJUDICE this civil action in 5 entirety based on Plaintiffs failure to prosecute pursuant to Fed. R. Civ. P. 41(b). The 6 || Court Clerk is directed to close this case. 7 IT IS SO ORDERED. 8 / ul 9 || DATED: January 5, 2021 Cif i iA A Hishaa ¢ 10 United States Daarict Jalge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28