(PC) Cortinas v. Vasquez

Opinion

1 2 3 4 5 6 7 10 11 LARRY WILLIAM CORTINAS, Case No. 1:19-cv-00367-JLT-SKO (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION FOR PLAINTIFF’S 13 v. FAILURE TO OBEY COURT ORDERS AND FAILURE TO PROSECUTE 14 VASQUEZ, et al., 14-DAY OBJECTION PERIOD 15 Defendants. 16 17 Plaintiff Larry William Cortinas is proceeding pro se and in forma pauperis in this civil 18 rights action brought pursuant to 42 U.S.C. § 1983. 20 On February 29, 2024, Plaintiff filed a motion seeking a 45-day stay of the proceedings 21 due to his impending parole. (Doc. 167.) On March 25, 2024, the Court issued its Order Granting 22 Plaintiff’s Motion for 45-Day Stay, noting a search of the California Incarcerated Records and 23 Information Search (CIRIS) tool revealed Plaintiff had since been released from custody. (Doc. 24 168.) 25 On May 13, 2024, the Court issued its Order Lifting Stay and Resetting Remaining 26 Discovery Deadlines. (Doc. 169.) Discovery was to be completed by July 15, 2024, and 27 dispositive motions were to be filed by September 13, 2024. (Id. at 3.) 1 On July 15, 2024, Defendants filed a motion to modify the discovery and dispositive 2 motion deadlines. (Doc. 170.) The motion revealed that defense counsel was unable to contact 3 Plaintiff despite having been provided a telephone number by Plaintiff’s parole officer and 4 multiple attempts to contact Plaintiff at that number. (Id.) 5 On July 17, 2024, the Court issued its Order Granting Defendants’ Motion to Modify 6 Discovery and Scheduling Deadlines. (Doc. 172.) Discovery was to be completed by September 7 13, 2024, and dispositive motions were to be filed by November 12, 2024. (Id. at 3.) That same 8 date, the Court issued its Order to Show Cause (OSC) in Writing Why Sanctions Should Not Be 9 Imposed for Plaintiff’s Failure to Keep the Court and Opposing Counsel Apprised of his Current 10 Address. (Doc. 171.) Plaintiff was directed to file a response within 21 days. (Id. at 3.) 11 On August 1, 2024, the United States Postal Service returned both orders served to 12 Plaintiff at his address of record marked “Undeliverable, Paroled.” 14 Applicable Legal Standards 15 The Local Rules, corresponding with Federal Rule of Civil Procedure 11, provide, 16 “[f]ailure of counsel or of a party to comply with . . . any order of the Court may be grounds for 17 the imposition by the Court of any and all sanctions . . . within the inherent power of the Court.” 18 Local Rule 110. “District courts have inherent power to control their dockets” and, in exercising 19 that power, may impose sanctions, including dismissal of an action. Thompson v. Housing Auth., 20 City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based on a 21 party’s failure to prosecute an action, obey a court order, or comply with local rules. See, e.g., 22 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with a 23 court order to amend a complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 24 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 25 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). 26 Local Rule 182(f) provides that a “pro se party is under a continuing duty to notify the 27 Clerk and all other parties of any change of address …. Absent such notice, service of documents 1 states, in part: “A party appearing in propria persona shall keep the Court and opposing parties 2 advised as to his or her current address.” 3 “In determining whether to dismiss an action for lack of prosecution, the district court is 4 required to weigh several factors: (1) the public’s interest in expeditious resolution of litigation; 5 (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 6 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 7 sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (internal quotation marks & 8 citation omitted). These factors guide a court in deciding what to do and are not conditions that 9 must be met in order for a court to take action. In re Phenylpropanolamine (PPA) Products 10 Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (citation omitted). 11 Analysis 12 Plaintiff was released from custody in March 2024. (See Docs. 167 & 168.) In the ensuing 13 five months, Plaintiff has not contacted the Court or counsel for Defendants, and has failed to 14 keep the Court and Defendants apprised of his current address.1 2 Plaintiff also appears to have 15 failed to keep the Court apprised of his current address in several other actions pending in this 16 district.3 There are no other reasonable alternatives available to address Plaintiff’s failure to obey 17 the Court’s rules and failure to prosecute this action. Thus, the first and second factors, the 18 expeditious resolution of litigation and the Court’s need to manage its docket, weigh in favor of 19 dismissal. Carey, 856 F.2d at 1440. 20 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal since a 21 presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 22 1 Plaintiff’s address on file with the Court remains “Larry William Cortinas, P-09908, California Medical 23 Facility, P.O. Box 2000, Vacaville, California 95696-2000.”

24 2 Plaintiff filed a Notice of Change of Address on January 14, 2022 (see Doc. 77), reflecting an awareness 25 of his obligation to the Court.

26 3 See Cortinas v. Soltanian, No. 2:20-cv-01067-DAD-JDP (current address of record reflects the California Medical Facility); Cortinas v. Colvin, No. 2:21-cv-02291-DAD-CKD (same); Cortinas v. Ikegbu, No. 27 2:23-cv-00285 (same, and findings and recommendations to dismiss for failure to prosecute pending); Cortinas v. Bivin, No. 2:23-cv-00388-WBS-DMC (same); Cortinas v. Stewart, No. 2:24-00130-DAD- CKD (same). Chandler v. United States, 378 F.2d 906, 909 (9th Cir. 1967) (“[A] federal district court can 1 See Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). Here, Defendants have diligently 2 investigated and defended this action for more than five years but have been unable to schedule 3 Plaintiff’s deposition or contact Plaintiff following his release from custody. (See Doc. 170-1, ¶¶ 4 3-5.) This matter cannot proceed without Plaintiff’s participation, and a presumption of injury has 5 arisen from Plaintiff’s unreasonable delay in prosecuting this action. Thus, the third factor, a risk 6 of prejudice to the defendants, also weighs in favor of dismissal. Carey, 856 F.2d at 1440. 7 The fourth factor usually weighs against dismissal because public policy favors 8 disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, 9 “this factor lends little support to a party whose responsibility it is to move a case toward 10 disposition on the merits but whose conduct impedes progress in that direction.” In re PPA, 460 11 F.3d at 1228. Plaintiff has not moved this case toward disposition on the merits. He has instead 12 failed to comply with this Court’s Local Rules to keep the Court apprised of his current address. 13 The Court has had no contact with Plaintiff for more than five months, Plaintiff is no longer 14 incarcerated at the California Medical Facility, and is not in CDCR custody.4 Therefore, the 15 fourth factor, the public policy favoring disposition of cases on their merits, also weighs in favor 16 of dismissal. Carey, 856 F.2d at 1440. 17 Finally, the Court’s warning to a party that failure to obey the court’s orders or rules will 18 result in dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d 19 at 1262. Here, the notice issued March 14, 2019, advised Plaintiff of his duty to keep the Court 20 apprised of his current address. (See Doc. 3 at 2 [“Local Rule 182 Each party appearing in 21 propria persona is under a continuing duty to notify the Clerk and all other parties of any change 22 of address”.) In the First Informational Order in Prisoner/Civil Detainee Civil Rights Case issued 23 March 20, 2019, Plaintiff was also advised as follows: “In litigating this action, the parties must 24 comply with this Order, the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”), and the Local 25 Rules of the United States District Court, Eastern District of California (“Local Rules”), as 26 modified by this Order. Failure to so comply will be grounds for imposition of sanctions which 27 may include dismissal of the case. Local Rule 110; Fed. R. Civ. P. 41(b).” (See Doc. 5 at 1.) That 1 Order further advised: “A pro se plaintiff must keep the Court and opposing parties informed of 2 the party’s correct current address. Local Rule 182(f). If a party moves to a different address 3 without filing and serving a notice of change of address, documents served at a party’s old 4 address of record shall be deemed received even if not actually received. … If mail directed to a 5 pro se plaintiff at the address of record is returned by the United States Postal Service as 6 undeliverable, the order will not be re-served a second time absence a notice of change of 7 address.” (Id. at 5.) 8 In its March 25, 2024, Order granting a 45-day stay of the proceedings, Plaintiff was also 9 “reminded of his obligation to keep the Court apprised of his current address,” pursuant to Local 10 Rule 182(f). (Doc. 168 at 3.) Finally, it is OSC issued July 17, 2024, the Court stated: 11 “WARNING: Failure to comply with this Order to Show Cause (OSC) will result in a 12 recommendation that this action be dismissed without prejudice for Plaintiff’s failure to 13 obey orders and failure to prosecute.” (Doc. 171 at 3, emphasis in original.) 14 In sum, Plaintiff has failed to comply with this Court’s Local Rules, and in doing so, has 15 failed to prosecute this action. Carey, 856 F.2d at 1440; Henderson, 779 F.2d at 1424. Whether 16 Plaintiff has done so intentionally or mistakenly is inconsequential. It is Plaintiff’s responsibility 17 to comply with the Local Rules, to prosecute this action, and to keep the Court apprised of his 18 current address. The Court declines to further expend its limited resources on a case that Plaintiff 19 has chosen to ignore. 21 Based on the foregoing, the Court RECOMMENDS that this action be dismissed, without 22 prejudice, based on Plaintiff’s failure to obey the Local Rules, to prosecute this action, and to keep 23 the Court apprised of his current or correct address. 24 These Findings and Recommendations will be submitted to the district judge assigned to 25 this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of service of these 26 Findings and Recommendations, a party may file written objections with the Court. The 27 document should be captioned, “Objections to Magistrate Judge’s Findings and 1 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 2 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 IT IS SO ORDERED. 4

5 Dated: August 9, 2024 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 6

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27