1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BINH C. TRAN, Case No.: 1:21-cv-00288-KES-CDB 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION WITHOUT PREJUDICE 13 v. FOR A FAILURE TO PROSECUTE
14 V. FONSECA, et al., 14-DAY OBJECTION PERIOD
15 Defendants.
17 Plaintiff Binh C. Tran is proceeding pro se and in forma pauperis in this civil rights action 18 pursuant to 42 U.S.C. section 1983. 19 I. BACKGROUND 20 When the parties indicated their wish to participate in an early settlement conference (see 21 Docs. 24 & 29), this case was scheduled for a telephonic pre-settlement conference on February 22 4, 2026, and a settlement conference on February 12, 2026; both proceedings are to be heard 23 before Magistrate Judge Sheila K. Oberto (see Doc. 30). 24 On December 12, 2025, the Court issued the related Order & Writ of Habeas Corpus ad 25 Testificandum, directed to the ERO El Paso Camp East Montana facility in El Paso, Texas. 26 (Docs. 32 & 33.) 27 On January 23, 2026, Defendants D. Lopez and V. Zepeda filed Defendants’ Notice of 1 Following review of Defendants’ notice, the undersigned will recommend this action be 2 dismissed without prejudice. 3 II. DISCUSSION 4 Defendants’ Notice (Doc. 34) 5 In summary, Defendants report the following: (1) pursuant to the Court’s October 27, 6 2025, order concerning the settlement conference and settlement conference procedures, 7 Defendants awaited Plaintiff’s informal demand due by December 29, 2025; (2) when Defendants 8 did not receive Plaintiff’s written itemization of damages and settlement demand, defense counsel 9 “attempted to confirm that Plaintiff was located at the” address reflected on the Court’s docket; 10 (3) counsel consulted “ICE’s Online Detainee Locator System,” but her “search produced zero 11 matching records;” and (4) on January 15, 2026, defense counsel was advised by Immigrations 12 and Customs Enforcement personnel that “Plaintiff was no longer in ICE custody and had been 13 removed from the United States on December 16, 2025.” 14 Analysis 15 Courts may dismiss lawsuits for lack of prosecution. Link v. Wabash R.R., 370 U.S. 626, 16 629-30 (1962); Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988). In determining whether to 17 dismiss a pro se plaintiff’s action for failure to prosecute, a court must consider “(1) the public’s 18 interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the 19 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 20 merits; and (5) the availability of less drastic sanctions.” Carey, 856 F.2d at 1440. 21 Here, Plaintiff was deported, presumably to his country of origin, more than 40 days ago. 22 Within that period, Plaintiff has not advised the Court of an updated or current address. Further, 23 defense counsel’s efforts to communicate with Plaintiff following the Court’s October 27, 2025, 24 order setting a settlement conference and settlement conference procedures, were thorough but 25 unsuccessful. Ultimately, defense counsel learned that Plaintiff was deported on December 16, 26 2025. Given the Court’s inability to communicate with Plaintiff, there are no other reasonable 27 alternatives available to address Plaintiff’s failure to prosecute this action. Thus, the first and 1 docket — weigh in favor of dismissal. Carey, 856 F.2d at 1440. 2 The third factor also weighs fairly in favor of dismissal since a presumption of injury 3 arises from the occurrence of unreasonable delay in prosecuting an action. See Anderson v. Air 4 W., 542 F.2d 522, 524 (9th Cir. 1976). Here, Defendants have appeared in the action (Doc. 21), 5 recently indicated a willingness to participate in an early settlement conference (Doc. 29), and 6 attempted to comply with the required settlement conference procedures, including engaging in 7 informal settlement negotiations (Docs. 30 & 34). Although 40 days may not amount to an 8 unreasonable delay in other circumstances, this action is at a standstill. Without a current address 9 for Plaintiff, who is no longer in state or federal custody,1 but has been removed from this 10 country, further unreasonable delays are inevitable. Thus, the third factor also weighs in favor of 11 dismissal. Carey, 856 F.2d at 1440-41. 12 The fourth factor usually weighs against dismissal because public policy favors 13 disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, 14 “this factor lends little support to a party whose responsibility it is to move a case toward 15 disposition on the merits but whose conduct impedes progress in that direction.” In re PPA, 460 16 F.3d 1217, 1228 (9th Cir. 2006) (internal quotation and citation omitted). Here, Plaintiff cannot 17 be located following deportation or removal to Vietnam in December 2025. It is Plaintiff’s 18 obligation to keep the parties and the Court apprised of his current address. See Local Rules 19 182(f), 183(b). Following removal and deportation, Plaintiff has not updated his address with the 20 Court or otherwise communicated with the Court or Defendants. Where Plaintiff’s last 21 communication with the Court occurred on August 24, 2025 (Doc. 24) and the Court — rather 22 than Plaintiff — updated Plaintiff’s address to the address currently reflected on the docket (see 23 Docket Entry No. 31 [12/12/25]), coupled with his deportation on December 16, 2025, Plaintiff 24 will not be moving this case forward toward disposition on the merits. Simply put, where this 25 Court has no way to contact Plaintiff, Plaintiff’s failure to comply with the October 24, 2025, 26
27 1 When Plaintiff filed this action on March 1, 2021, he was housed at the California Rehabilitation Center in Norco, California. (See Doc. 1.) On December 4, 2023, Plaintiff filed a Notice of Change of Address, reflecting he was then 1 order and failure to comply with this Court’s Local Rules requiring him to keep the Court 2 apprised of his current address, it appears clear that Plaintiff will be unable to move this case 3 toward disposition on its merits. Therefore, in these circumstances, the fourth factor — the public 4 policy favoring disposition of cases on their merits — also weighs in favor of dismissal. Carey, 5 856 F.2d at 1440. 6 Finally, the Court considers the availability of less drastic sanctions. A district court need 7 not exhaust every sanction short of dismissal before finally dismissing a case but must explore 8 possible and meaningful alternatives. See, e.g., Nevijel v. North Coast Life Insurance Co., 651 9 F.2d 671, 674 (9th Cir. 1981) (district court may dismiss an action with prejudice due to a 10 litigant's failure to comply with Rule 8(a) if meaningful, less drastic sanctions have been 11 explored); see also Lopez-Rangel v. Copenhaver, No. 14-cv-1175-DLB PC, 2016 WL 8730721, 12 at *1, n.1 (E.D. Cal. Jan. 29, 2016) (noting the action “was [previously] dismissed without 13 prejudice on December 9, 2015, after Plaintiff was released and deported, but failed to keep the 14 Court apprised of his current address”). The Court has considered possible and meaningful 15 alternatives in this case. Neither Defendants nor the Court have a way to locate or communicate 16 with Plaintiff. Given Plaintiff’s deportation more than 40 days ago, the Court’s inability to locate 17 and/or contact Plaintiff means that less drastic sanctions are simply unavailable.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BINH C. TRAN, Case No.: 1:21-cv-00288-KES-CDB 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION WITHOUT PREJUDICE 13 v. FOR A FAILURE TO PROSECUTE
14 V. FONSECA, et al., 14-DAY OBJECTION PERIOD
15 Defendants.
17 Plaintiff Binh C. Tran is proceeding pro se and in forma pauperis in this civil rights action 18 pursuant to 42 U.S.C. section 1983. 19 I. BACKGROUND 20 When the parties indicated their wish to participate in an early settlement conference (see 21 Docs. 24 & 29), this case was scheduled for a telephonic pre-settlement conference on February 22 4, 2026, and a settlement conference on February 12, 2026; both proceedings are to be heard 23 before Magistrate Judge Sheila K. Oberto (see Doc. 30). 24 On December 12, 2025, the Court issued the related Order & Writ of Habeas Corpus ad 25 Testificandum, directed to the ERO El Paso Camp East Montana facility in El Paso, Texas. 26 (Docs. 32 & 33.) 27 On January 23, 2026, Defendants D. Lopez and V. Zepeda filed Defendants’ Notice of 1 Following review of Defendants’ notice, the undersigned will recommend this action be 2 dismissed without prejudice. 3 II. DISCUSSION 4 Defendants’ Notice (Doc. 34) 5 In summary, Defendants report the following: (1) pursuant to the Court’s October 27, 6 2025, order concerning the settlement conference and settlement conference procedures, 7 Defendants awaited Plaintiff’s informal demand due by December 29, 2025; (2) when Defendants 8 did not receive Plaintiff’s written itemization of damages and settlement demand, defense counsel 9 “attempted to confirm that Plaintiff was located at the” address reflected on the Court’s docket; 10 (3) counsel consulted “ICE’s Online Detainee Locator System,” but her “search produced zero 11 matching records;” and (4) on January 15, 2026, defense counsel was advised by Immigrations 12 and Customs Enforcement personnel that “Plaintiff was no longer in ICE custody and had been 13 removed from the United States on December 16, 2025.” 14 Analysis 15 Courts may dismiss lawsuits for lack of prosecution. Link v. Wabash R.R., 370 U.S. 626, 16 629-30 (1962); Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988). In determining whether to 17 dismiss a pro se plaintiff’s action for failure to prosecute, a court must consider “(1) the public’s 18 interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the 19 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 20 merits; and (5) the availability of less drastic sanctions.” Carey, 856 F.2d at 1440. 21 Here, Plaintiff was deported, presumably to his country of origin, more than 40 days ago. 22 Within that period, Plaintiff has not advised the Court of an updated or current address. Further, 23 defense counsel’s efforts to communicate with Plaintiff following the Court’s October 27, 2025, 24 order setting a settlement conference and settlement conference procedures, were thorough but 25 unsuccessful. Ultimately, defense counsel learned that Plaintiff was deported on December 16, 26 2025. Given the Court’s inability to communicate with Plaintiff, there are no other reasonable 27 alternatives available to address Plaintiff’s failure to prosecute this action. Thus, the first and 1 docket — weigh in favor of dismissal. Carey, 856 F.2d at 1440. 2 The third factor also weighs fairly in favor of dismissal since a presumption of injury 3 arises from the occurrence of unreasonable delay in prosecuting an action. See Anderson v. Air 4 W., 542 F.2d 522, 524 (9th Cir. 1976). Here, Defendants have appeared in the action (Doc. 21), 5 recently indicated a willingness to participate in an early settlement conference (Doc. 29), and 6 attempted to comply with the required settlement conference procedures, including engaging in 7 informal settlement negotiations (Docs. 30 & 34). Although 40 days may not amount to an 8 unreasonable delay in other circumstances, this action is at a standstill. Without a current address 9 for Plaintiff, who is no longer in state or federal custody,1 but has been removed from this 10 country, further unreasonable delays are inevitable. Thus, the third factor also weighs in favor of 11 dismissal. Carey, 856 F.2d at 1440-41. 12 The fourth factor usually weighs against dismissal because public policy favors 13 disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, 14 “this factor lends little support to a party whose responsibility it is to move a case toward 15 disposition on the merits but whose conduct impedes progress in that direction.” In re PPA, 460 16 F.3d 1217, 1228 (9th Cir. 2006) (internal quotation and citation omitted). Here, Plaintiff cannot 17 be located following deportation or removal to Vietnam in December 2025. It is Plaintiff’s 18 obligation to keep the parties and the Court apprised of his current address. See Local Rules 19 182(f), 183(b). Following removal and deportation, Plaintiff has not updated his address with the 20 Court or otherwise communicated with the Court or Defendants. Where Plaintiff’s last 21 communication with the Court occurred on August 24, 2025 (Doc. 24) and the Court — rather 22 than Plaintiff — updated Plaintiff’s address to the address currently reflected on the docket (see 23 Docket Entry No. 31 [12/12/25]), coupled with his deportation on December 16, 2025, Plaintiff 24 will not be moving this case forward toward disposition on the merits. Simply put, where this 25 Court has no way to contact Plaintiff, Plaintiff’s failure to comply with the October 24, 2025, 26
27 1 When Plaintiff filed this action on March 1, 2021, he was housed at the California Rehabilitation Center in Norco, California. (See Doc. 1.) On December 4, 2023, Plaintiff filed a Notice of Change of Address, reflecting he was then 1 order and failure to comply with this Court’s Local Rules requiring him to keep the Court 2 apprised of his current address, it appears clear that Plaintiff will be unable to move this case 3 toward disposition on its merits. Therefore, in these circumstances, the fourth factor — the public 4 policy favoring disposition of cases on their merits — also weighs in favor of dismissal. Carey, 5 856 F.2d at 1440. 6 Finally, the Court considers the availability of less drastic sanctions. A district court need 7 not exhaust every sanction short of dismissal before finally dismissing a case but must explore 8 possible and meaningful alternatives. See, e.g., Nevijel v. North Coast Life Insurance Co., 651 9 F.2d 671, 674 (9th Cir. 1981) (district court may dismiss an action with prejudice due to a 10 litigant's failure to comply with Rule 8(a) if meaningful, less drastic sanctions have been 11 explored); see also Lopez-Rangel v. Copenhaver, No. 14-cv-1175-DLB PC, 2016 WL 8730721, 12 at *1, n.1 (E.D. Cal. Jan. 29, 2016) (noting the action “was [previously] dismissed without 13 prejudice on December 9, 2015, after Plaintiff was released and deported, but failed to keep the 14 Court apprised of his current address”). The Court has considered possible and meaningful 15 alternatives in this case. Neither Defendants nor the Court have a way to locate or communicate 16 with Plaintiff. Given Plaintiff’s deportation more than 40 days ago, the Court’s inability to locate 17 and/or contact Plaintiff means that less drastic sanctions are simply unavailable. 18 Additionally, the Court notes dismissal for a failure to prosecute where a plaintiff has been 19 deported is not exceptional. See, e.g., Flores v. Cuevas, No. 1:24-cv-01412-KES-CDB, 2025 WL 20 535665, at *1 (E.D. Cal. Feb. 18, 2025) (adopting recommendation to dismiss action without 21 prejudice for a failure to prosecute following section 1983 plaintiff’s deportation to Mexico); 22 Clarke v. United States, No. 19-CV-00328V(F), 2021 WL 431630, at *4 (W.D.N.Y. Jan. 5, 2021) 23 (recommending dismissal of section 1983 plaintiff’s action for failure to prosecute following 24 deportation), adopted 2021 WL 428651 (W.D.N.Y. Feb. 8, 2021); Bueno Diaz v. Mercurio, No. 25 19 Civ. 1319 (AT), 2020 WL 3893271, at *3 (S.D.N.Y. July 9, 2020) (granting motion to dismiss 26 for failure to prosecute and stating, “In light of Plaintiff’s circumstances—including his pro se 27 status, frequently changing custody, and deportation—dismissal without prejudice is warranted”); 1 | (same); /barra v. Henderson, No. 14-cv-0395-MJR-SCW, 2015 WL 5162276, at *1 (S.D. Ill. 2 | Sept. 1, 2015) (adopting recommendation to grant motion to dismiss for want of prosecution 3 | following plaintiffs release from prison and deportation). 4 Hl. CONCLUSION AND RECOMMENDATION 5 Based upon the foregoing, the undersigned HEREBY RECOMMENDS this action be 6 | dismissed without prejudice for a failure to prosecute. 7 These Findings and Recommendations will be submitted to the United States District 8 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 9 | after being served with a copy of these Findings and Recommendations, a party may file written 10 | objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to 11 | Magistrate Judge’s Findings and Recommendations” and shall not exceed 15 pages without 12 || leave of Court and good cause shown. The Court will not consider exhibits attached to the 13 || Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference the 14 | exhibit in the record by its CM/ECF document and page number, when possible, or otherwise 15 | reference the exhibit with specificity. Any pages filed in excess of the 15-page limitation may be 16 | disregarded by the District Judge when reviewing these Findings and Recommendations under 28 17 | US.C. § 636(b)()(C). A party’s failure to file any objections within the specified time 18 | may result in the waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th 19 | Cir. 2014). 20 | ITIS SO ORDERED. | Dated: _ January 26, 2026 | Wr ba 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28