Hanley v. Wilkens

• Court: District Court, E.D. California
• Decided: September 3, 2024
• Docket: 1:22-cv-00404
• Status: Unknown

Opinion

6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8

9 ROLLAND HANLEY, Case No. 1:22-cv-00404-JLT-SAB

10 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING 11 v. DEFENDANT’S MOTION TO DISMISS WITH PREJUDICE FOR LACK OF 12 WILKINS, PROSECUTION

13 Defendants. (ECF Nos. 26, 28)

14 OBJECTIONS DUE WITHIN FOURTEEN DAYS 15 16 Currently before the Court is Brandon Wilkins motion to dismiss this action for lack of 17 prosecution. (ECF No. 26.) The Court, having reviewed the record, finds this matter suitable for 18 decision without oral argument. See Local Rule 230(g). Having considered the moving and 19 reply papers, the declarations and exhibits attached thereto, as well as the Court’s file, the Court 20 issues the following findings and recommendations. 21 I. 22 PROCEDURAL HISTORY 23 Rolland Hanley (“Plaintiff”), a detainee at the Merced County jail, proceeding pro se and 24 in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 against Brandon 25 Wilkins (“Defendant”) on April 8, 2022. (ECF No. 1.) On this same date, the first information 26 order in prisoner/civil detainee civil rights cases was filed and served on Plaintiff. (ECF Nos. 3, 27 4.) On April 15, 2022, a screening order issued finding Plaintiff’s complaint failed to state a 1 c ognizable claim and granting Plaintiff leave to file an amended complaint within thirty days. 2 (ECF No. 5.) On May 12, 2022, Plaintiff filed a first amended complaint. (ECF No. 6.) On 3 May 18, 2022, a second screening order was filed finding that Plaintiff had failed to state a 4 cognizable claim and granting Plaintiff one final opportunity to file a second amended complaint. 5 (ECF No. 7.) 6 On June 16, 2022, Plaintiff filed a second amended complaint. (ECF No. 8.) On August 7 4, 2022, an order issued finding service of the second amended complaint appropriate and 8 authorizing service. (ECF No. 10.) On September 6, 2022, Plaintiff filed a motion for an 9 extension of time to return service documents and filed a notice of change of address to the 10 Department of State Hospitals-Napa. (ECF No. 12.) On September 7, 2022, an order issued 11 granting the extension of time. (ECF No. 13.) Plaintiff filed a notice of submission of 12 documents on September 27, 2022. (ECF Nos. 14.) On October 19, 2022, the informational 13 order issued along with an order directing service by the United States Marshal. (ECF Nos. 15, 14 16.) On November 10, 2022, Plaintiff filed a consent/decline form. (ECF No. 17.) 15 On January 3, 2023, Plaintiff filed a change of address to the John Latorraca Correctional 16 Facility, 2584 W. Sandy Mush Road, Merced, California 95341.1 (ECF No. 18.) On April 13, 17 2022, Defendant filed an answer to the complaint. (ECF No. 20.) 18 On May 23, 2023, an order issued requiring the parties to file a joint scheduling report. 19 (ECF No. 22.) On June 5, 2023, the order mailed to Plaintiff was returned as “Undeliverable, 20 Not in Custody.” On June 22, 2023, Defendant filed a scheduling report stating that several 21 attempts had been made to contact Plaintiff, but all mail had been returned as undeliverable and 22 Defendant believed that Plaintiff was no longer in custody. (ECF No. 23 at 1.)2 On June 23, 23 1 Courts may take judicial notice of “a fact that is not subject to reasonable dispute because it . . . can be accurately 24 and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Courts may take judicial notice of information displayed on government websites where neither party disputes the 25 accuracy of the information contained therein. Daniels –Hall v. National Educ. Ass’n, 629 F.3d 992, 998-99 (9th Cir. 2010). The Court takes judicial notice that the John Latorraca Correction Facility is located at this address. See John Latorraca Correctional Facility Info – Bail, Visiting, Contact located at 26 https://www.shouselaw.com/ca/defense/jails/john-latorraca-correctional-facility/ (last visited Sept. 2, 2024.

27 2 All references to pagination of specific documents pertain to those as indicated on the upper right corners via the CM/ECF electronic court docketing system. 1 2 023, the scheduling order issued and was served on Plaintiff. (ECF No. 24.) On July 5, 2023, 2 the order was returned as “Undeliverable, Not in Custody.” On March 26, 2024, District Judge 3 Jennifer L. Thurston issued a standing order which was served on Plaintiff. 4 On July 26, 2024, Defendant filed the instant motion to dismiss for lack of prosecution. 5 (ECF No. 26.) On August 16, 2024, the motion was referred to the undersigned for the 6 preparation of findings and recommendations. (ECF No. 27.) On August 30, 2024, Defendant 7 filed a reply. (ECF No. 28.) 8 II. 9 LEGAL STANDARD 10 The Federal Rules of Civil Procedure state, “If the plaintiff fails to prosecute or to 11 comply with these rules or a court order, a defendant may move to dismiss the action or any 12 claim against it.” Fed. R. Civ. P. 41(b). In considering whether to dismiss for lack of 13 prosecution, the Court is to weigh the following factors:

14 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 15 policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions. 16 17 Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (quoting Henderson v. Duncan, 779 F.2d 18 1421, 1423 (9th Cir. 1986)). These factors guide a court in deciding what to do and are not 19 conditions that must be met in order for a court to take action. In re Phenylpropanolamine (PPA) 20 Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (citation omitted). 21 The Ninth Circuit has affirmed dismissal of an action where at least four of the factors 22 support dismissal or the dismissal is strongly supported by at least three of the factors. Yourish v. 23 Cal. Amplifier, 191 F.3d 983, 988 (9th Cir. 1999) superseded by statute on other grounds as 24 recognized in Russel v. United States, Case No.: 21-cv-1029-LL-MDD, 2023 WL 2919319, at *3 25 (S.D. Cal. Apr. 12, 2023). It is within the discretion of the court to dismiss for failure to 26 prosecute. Al-Torki v. Kaempen, 78 F.3d 1381, 1385 (9th Cir. 1996). “Dismissal is a harsh 27 penalty and is to be imposed only in extreme circumstances.” Henderson, 779 F.2d at 1423. 1 III. 2 ANALYSIS AND DISCUSSION 3 Defendant moves to dismiss this action on the grounds that Plaintiff has failed to 4 prosecute this action and has failed to comply with the Court’s order that he keep his address 5 updated. Defendant replies that Plaintiff failed to file an opposition which further serves to 6 demonstrate his lack of interest in prosecuting this case. 7 A. Failure to Comply with Court Order 8 Defendant moves to dismiss on the ground that Plaintiff has failed to comply with Local 9 Rule 183(b) which requires a change of address form to be filed within 63 days of mail being 10 returned. Defendant argues that it has been more than a year since Plaintiff’s mail began being 11 returned as undeliverable and not once during this time has Plaintiff filed or served a notice of 12 change of address. (Motion to Dismiss with Prejudice for Failure to Prosecute Pursuant to 13 Federal Rule of Civil Procedure 41(b) (“Mot.) 2, ECF No. 26-1.) Defendants also assert that on 14 February 2, 2024, Plaintiff was served with written requests for discovery that were returned 15 unopened and as undeliverable. Defendants also state that they have never received any 16 communication from Plaintiff during this action. (Id. at 3.) 17 Pursuant to Local Rule 183(b), a party appearing in propria persona is required to keep 18 the Court apprised of his current address at all times. Local Rule 183(b) provides, in pertinent 19 part:

20 If mail directed to a plaintiff in propria persona by the Clerk is returned by the 21 U.S. Postal Service, and if such plaintiff fails to notify the Court and opposing parties within sixty-three (63) days thereafter of a current address, the Court may 22 dismiss the action without prejudice for failure to prosecute. 23 Here, Plaintiff’s mail was initially returned on June 5, 2023. The Clerk also served mail 24 on Plaintiff which was returned on July 5, 2023. More than sixty-three days have passed since 25 Plaintiff’s mail was first returned, and Plaintiff has not notified the Court of a current address. 26 Here, Plaintiff was served with a copy of the motion to dismiss for lack of prosecution 27 which informed him of the requirements of Local Rule 230 that an opposition to the motion was 1 t o be filed within twenty-one days of the date of service. (Notice of Motion 1, ECF No. 26.) 2 Although Plaintiff’s mail has previously been returned as undeliverable, Rule 182(f) provides,

3 Each appearing attorney and pro se party is under a continuing duty to notify the Clerk and all other parties of any change of address or telephone number of the 4 attorney or the pro se party. Absent such notice, service of documents at the prior address of the attorney or pro se party shall be fully effective. 5 6 Therefore, service of the motion on the current address of record is fully effective. Plaintiff has 7 not filed an opposition to the instant motion. 8 The Court is unable to contact Plaintiff and there are no other reasonable alternatives 9 available to address Plaintiff’s failure to comply with the Local Rule. Therefore, the Court 10 recommends that this action be dismissed for failure to prosecute. 11 B. Consideration of the Factors for Dismissal 12 Defendants seek to dismiss this action with prejudice based on Plaintiff’s failure to 13 prosecute arguing that Plaintiff has made no attempt to litigate this action during the past year. 14 (Mot. at 3.) Defendant contends that the first two factors weigh in favor of dismissal as this 15 action has been active for more than a year and Plaintiff has made no attempts to participate in 16 the case during this time. Defendant further asserts that the Court’s time and resources could 17 have been devoted to other litigants who are actually litigating their cases and, as the Court is 18 aware, the Eastern District’s docket is extremely heavy. (Id. at 4.) 19 Defendant argues that the third factor particularly favors dismissal as he has suffered 20 significant prejudice by Plaintiff effectively abandoning his case. Defendant contends that 21 Plaintiff’s persistent noncompliance with keeping his address current has forced Defendant into a 22 position where he is unable to obtain the discovery to which he is entitled. Defendant asserts that 23 Plaintiff has completely stymied Defendant’s ability to defendant against this lawsuit. (Id.) 24 Defendant asserts that the fourth and fifth factors also favor dismissal as Plaintiff has left 25 the Court with no reason to believe that less drastic alternatives are available. Plaintiff was made 26 aware early in the action that he was required to keep the Court apprised of his address and in 27 fact demonstrated that he knew enough to comply because he did previously file two address 1 a ddress, Plaintiff has not informed the Court in over a year of his current address nor has 2 Plaintiff provided any indication that he intends to ever participate in this case. (Id. at 4.) 3 As stated above, in determining whether to dismiss an action with prejudice, the Court is 4 to consider “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 5 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 6 disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Carey, 856 7 F.2d at 1440. 8 In this instance, the public’s interest in expeditious resolution of the litigation and the 9 Court’s need to manage its docket weigh in favor of dismissal. In re Phenylpropanolamine 10 (PPA) Products Liability Litigation, 460 F.3d at 1226. “The public’s interest in expeditious 11 resolution of litigation always weighs in favor of dismissal.” Pagtalunan v. Galaza, 291 F.3d 12 639, 642 (9th Cir. 2002) (quoting Yourish, 191 F.3d at 990.) Given that Plaintiff has not made 13 any attempt to participate in this action for over a year, this factor weighs in favor of dismissal. 14 Furthermore, the Eastern District of California is one of the busiest Courts in the nation 15 and its dockets are extremely impacted. “It is incumbent upon the Court to manage its docket 16 without being subject to routine noncompliance of litigants.” Pagtalunan, 291 F.3d at 642. The 17 Court’s time spent litigating this action could have been devoted to other cases on the docket in 18 which the parties are actively litigating their action. The Court’s need to manage its docket 19 weighs in favor of dismissal. 20 Since it appears that Plaintiff does not intend to diligently litigate this action, a rebuttable 21 presumption of prejudice to the defendant arises. In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 22 1994). This risk of prejudice may be rebutted if Plaintiff offers an excuse for the delay. In re 23 Eisen, 31 F.3d at 1453. However, since Plaintiff has not objected to the motion to dismiss, he 24 has not rebutted the presumption of prejudice. “To prove prejudice, a defendant must establish 25 that plaintiff’s actions impaired defendant’s ability to proceed to trial or threatened to interfere 26 with the rightful decision of the case.” Pagtalunan, 291 F.3d at 642 (quoting Malone v. United 27 States Postal Serv., 833 F.2d 128, 131 (9th Cir.1987)). Defendant has served discovery and 1 r espond to discovery requests. The amount of delay in this case is not limited but is significant. 2 It has been over a year since Plaintiff participated in the action. The Court finds that the 3 prejudice to Defendant based on Plaintiff’s failure to participate in this action threatens to 4 interfere with the rightful decision in the case and therefore weighs in favor of dismissal. 5 The public policy in favor of deciding cases on their merits is greatly outweighed by the 6 factors in favor of dismissal. It is Plaintiff’s responsibility to move this action forward and this 7 action can proceed no further without Plaintiff’s cooperation. Plaintiff was informed that he was 8 required to keep the Court informed of his address at the beginning of this action. He initially 9 notified the Court of his two prior address changes but has not informed the Court of his current 10 address as of June 5, 2023. Further, pursuant to the Local Rules, Plaintiff was required to keep 11 the Court updated with his most recent address within sixty-three days of mail being returned as 12 undeliverable. It has been more than sixty-three days since Plaintiff’s mail was returned as 13 undeliverable and he has not provided the Clerk with an updated address. Therefore, there is no 14 current address at which to contact Plaintiff. Plaintiff’s failure to comply with the Local Rules 15 hinders the Court’s ability to move this action towards disposition and indicates that Plaintiff 16 does not intend to diligently litigate this action. This action cannot simply remain idle on the 17 Court’s docket, unprosecuted. In this instance, the fourth factor does not outweigh Plaintiff’s 18 failure to keep the Court and Defendant informed of his current address and failure to litigate this 19 action. 20 Finally, a court’s warning to a party that their failure to obey the court’s order will result 21 in dismissal satisfies the “consideration of alternatives” requirement. Ferdik v. Bonzelet, 963 22 F.2d 1258, 1262 (9th Cir. 1992); Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The 23 first informational order filed April 8, 2022, informed Plaintiff that his failure to comply with the 24 Local Rules would be grounds for the imposition of sanctions, including dismissal of the action. 25 (ECF No. 3 at 1.) Further, the order notified Plaintiff of the requirement that he keep the Court 26 and opposing party informed of his current address. (Id. at 3.) The order further informed 27 Plaintiff that failure to update his address within sixty-three days of mail being returned would 1 Additionally, the informational order filed on October 19, 2022, informed Plaintiff that 2 his failure to comply with the Local Rules would “be grounds for dismissal, entry of default 3 or other appropriate sanctions.” (ECF No. 15-1 at 1, 5 (emphasis in original).) The order also 4 informed Plaintiff that he had an affirmative duty to keep the Court and opposing party informed 5 of his current address. (Id. at 3.) Plaintiff was warned if his “address is not updated within 60 6 days of [] mail being returned, the action will be dismissed for failure to prosecute.” (Id. 7 (emphasis in original).) 8 Finally, the order requiring the parties to file a joint status report stated that the failure to 9 participate in the joint report may subject the offending party to sanctions. (ECF No. 22 at 2.) 10 The order further stated, “[s]hould counsel or a party appearing pro se fail to comply with the 11 directions as set forth above, an ex parte hearing may be held and contempt sanctions, 12 including monetary sanctions, dismissal, default, or other appropriate judgment, may be 13 imposed and/or ordered.” (Id. at 6.) Thus, Plaintiff had adequate warning that dismissal would 14 result from his noncompliance with the Court’s order. 15 IV. 16 CONCLUSION AND RECOMMENDATION 17 In this instance, Local Rule 183(b) provides for the dismissal of an action based on 18 returned mail. Given the Court’s inability to communicate with Plaintiff, dismissal is warranted 19 and there are no other reasonable alternatives available. See Carey, 856 F.2d at 1441. 20 In considering the factors to determine if this action should be dismissed with prejudice, 21 the public’s interest in expeditious resolution of litigation; the Court’s need to manage its docket; 22 the risk of prejudice to Defendant; and the availability of less drastic sanctions all favor 23 dismissal. Additionally, Plaintiff’s failure to comply indicates that he does not intend to 24 diligently litigate this action. Since Plaintiff has failed to participate in this action in over a year 25 and has failed to respond to discovery, the delay is significant and interferes with Defendant’s 26 ability to defend this action. While the incident alleged occurred in 2021, Plaintiff has not 27 participated in this action for over a year and has not responded to Defendant’s written discovery 1 | further delay. Plaintiff was warned of his responsibility to keep the Court and the opposing party 2 | informed of his current address and warned that the failure to do so would result in the issuance 3 | of sanctions, including dismissal of the action. 4 Accordingly, IT IS HEREBY RECOMMENDED that Defendant’s motion to dismiss 5 | with prejudice for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b) be 6 | GRANTED. 7 These findings and recommendations are submitted to the district judge assigned to this 8 | action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 9 | (14) days of service of this recommendation, the parties may file written objections to these 10 | findings and recommendations with the Court and serve a copy on all parties. Such a document 11 | should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 12 | district judge will review the magistrate judge’s findings and recommendations pursuant to 28 13 | U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 14 | time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th 15 | Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 16 17 IT IS SO ORDERED. DAM Le 1g | Dated: _ September 3, 2024

9 UNITED STATES MAGISTRATE JUDGE

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