(PC) Foster v. Tulare County Sheriff's Department

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 JONAS B. FOSTER ) Case No.: 1:20-cv-01596-JLT-SAB (PC) ) 12 Plaintiff, ) ) FINDINGS AND RECOMMENDATIONS 13 v. ) RECOMMENDING DEFENDANTS’ MOTIONS TO DISMISS BE GRANTED, AND 14 TULARE COUNTY SHERIFF’S ) DEFENDANT’S MOTION FOR SUMMARY DEPARTMENT, et al., ) JUDGMENT BE DENIED AS MOOT 15 ) ) (ECF Nos. 35, 36, 37) 16 Defendants. ) ) 17 )

18 Plaintiff Jonas B. Foster is proceeding pro se and in forma pauperis in this civil rights action 19 pursuant to 42 U.S.C. § 1983. 20 Currently before the Court are Defendants’ motions to dismiss the action. (ECF Nos. 35, 36.) 21 I. 22 PROCEDURAL BACKGROUND 23 This action is proceeding on Plaintiff’s deliberate indifference claim against Defendants 24 Doctor Alla Liberstein and the Tulare County Sheriff’s Department. 25 On May 24, 2021, the Tulare County Sheriff’s Department filed an answer to the complaint. 26 (ECF No. 24.) On this same date, Doctor Alla Liberstein field a separate answer to the complaint. 27 (ECF No. 25.) 28 On May 25, 2021, the Court issued the discovery and scheduling order. (ECF No. 26.) 1 As previously stated, on March 3, 2022, Defendant Tulare County Sheriff’s Department filed a 2 motion to dismiss. (ECF No. 35.) On March 4, 2022, Defendant Alla Liberstein filed a motion to 3 dismiss the action. (ECF No. 36.) Plaintiff has not filed an opposition to either motion and the time to 4 do so has now passed. 5 On April 4, 2022, Defendant Tulare County Sheriff’s Department filed a motion for summary 6 judgment on the merits of Plaintiff’s claims. (ECF No. 37.) Although the time for Plaintiff to file a 7 response has not yet expired, the Court deems the motion submitted as it should be denied as rendered 8 moot. 9 II. 10 LEGAL STANDARDS 11 This court's Local Rules require litigants to keep the court apprised of their current address and 12 permits dismissal when the litigant fails to comply. Specifically: 13 “[a] party appearing in propria persona shall keep the Court and opposing parties advised as to his or her current address. If mail directed to a plaintiff in propria persona by the Clerk is 14 returned by the 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 dismiss the 15 action without prejudice for failure to prosecute.” 16 Local Rule 183(b); see also Local Rule 182(f) (all parties are “under a continuing duty” to notify the 17 clerk of “any change of address.” Precedent supports a dismissal of a case when a litigant fails to keep 18 the court appraised on his address. Carey v. King, 856 F.2d 1439 (9th Cir. 1988) (affirming lower 19 court and finding no abuse of discretion when district court dismissed case without prejudice after pro 20 se plaintiff did not comply with local rule requiring pro se plaintiffs keep court apprised of addresses 21 at all times); Hanley v. Opinski, Case No. 1:16-cv-391-DAD-SAB, 2018 WL 3388510 (E.D. Ca. July 22 10, 2018) (dismissing action for failure to prosecute and failure to provide court with current address). 23 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action when 24 a litigant fails to prosecute an action or fails to comply with other Rules or with a court order. See Fed. 25 R. Civ. P. 41(b); Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 (9th Cir. 2019) (citations 26 omitted); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (“[T]he 27 consensus among our sister circuits, with which we agree, is that courts may dismiss under Rule 41(b) 28 1 sua sponte, at least under certain circumstances.”). Local Rule 110 similarly permits the court to 2 impose sanctions on a party who fails to comply with the court's Rules or any order of court. 3 Involuntary dismissal is a harsh penalty, but it “is incumbent upon the Court to manage its docket 4 without being subject to routine noncompliance of litigants.” Pagtalunan v. Galaza, 291 F.3d 639, 642 5 (9th Cir. 2002). Before dismissing an action under Fed. R. Civ. P. 41, the court must consider: (1) the 6 public interest in expeditious resolution of litigation; (2) the court's need to manage a docket; (3) the 7 risk of prejudice to defendant; (4) public policy favoring disposition on the merits; and (5) the 8 availability of less drastic sanctions. See Applied Underwriters, 913 F.3d at 889 (noting that these five 9 factors “must” be analyzed before a Rule 41 involuntary dismissal) (emphasis added); Malone v. U.S. 10 Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (reviewing five factors and independently reviewing 11 the record because district court did not make finding as to each factor); but see Bautista v. Los 12 Angeles County, 216 F.3d 837, 841 (9th Cir. 2000) (listing the same five factors, but noting the court 13 need not make explicit findings as to each) (emphasis added); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 14 (9th Cir. 1992) (affirming dismissal of pro se § 1983 action when plaintiff did not amend caption to 15 remove “et al.” as the court directed and reiterating that an explicit finding of each factor is not 16 required by the district court). 17 III. 18 DISCUSSION 19 Having considered all of the above-mentioned factors, the Court concludes that dismissal of 20 the case is warranted. Plaintiff’s last correspondence with the Court was on August 20, 2021, when he 21 filed motion for an extension of time. (ECF No. 31.) Since that time, all correspondence to Plaintiff 22 has been returned by the United States Postal Office as “undeliverable” with a notation that Plaintiff 23 has been “paroled.” On August 25, 2021, Defendant Tulare County Sheriff’s Department wrote 24 Plaintiff upon learning that he was released from prison and asked that he keep counsel and the Court 25 apprised of his current mailing address.1 (ECF No. 35-2, Declaration of Amanda Lucas (“Lucas 26

27 1 Based on the record, Plaintiff was an inmate housed at Wasco State Prison at the time he filed his complaint in this action. (ECF No. 1.) On February 16, 2021, Plaintiff filed a notice of change of address with the court indicating that he 28 1 Decl.”) ¶ 4 & Ex. A.) On January 7, 2022, Defendant Alla Liberstein served a notice of taking 2 deposition of Plaintiff via videoconference to occur on January 24, 2022, at 10:00 a.m. (ECF No. 36- 3 2, Declaration of Jemma Saunders (“Saunders Decl.”) ¶ 7 & Ex. A.) On January 11, 2022, Defendant 4 Tulare County Sheriff’s Department served a notice of joinder in Dr. Liberstein’s notice of taking 5 Plaintiff’s deposition. (Lucas Decl. ¶ 6 & Ex. C.) Both the notice of taking deposition and notice of 6 joinder were served by mail at Plaintiff’s most current mailing address on file with the Court, i.e. 7 Avenal State Prison. (Lucas Decl. ¶ 6, Exs. B & C; Saunders Decl. ¶ 6, Ex. A.) 8 On January 24, 2022, Plaintiff failed to appear for his properly noticed deposition. (Lucas 9 Decl. ¶ 7; Saunders Decl. ¶ 7.) Consequently, defense counsel went on the record and took an 10 affidavit of Plaintiff’s nonappearance. (Lucas Decl. ¶ 7, Ex. D; Saunders Decl. ¶ 7, Ex. B.) 11 To date, Plaintiff has not filed a notice of change of address updating his mailing address, nor 12 has he filed any motions requesting modification of the scheduling order.2 Defendants also submit 13 that Plaintiff has not been in contact with them since he was paroled from prison. (Lucas Decl. ¶ 4.) 14 The expeditious resolution of litigation is deemed to be in the public interest, satisfying the 15 first factor. Yourish v. California Amplifier, 191 F.3d 983, 990–91 (9th Cir. 1999). Turning to the 16 second factor, the Court’s need to efficiently manage its docket is apparent. This case has been 17 pending since November 2020 and has stalled due to Plaintiff's failure to comply with the Court's 18 discovery orders or to update his contact information. Thus, the Court’s resources are better spent on 19 other matters than needlessly consumed managing a case with a noncompliant litigant. Indeed, “trial 20 courts do not have time to waste on multiple failures by aspiring litigants to follow the rules and 21 requirements of our courts.” Pagtalunan, 291 F.3d at 644 (Trott, J., concurring in affirmance of district 22 court's involuntary dismissal with prejudice of habeas petition where petitioner failed to timely 23

24 searches both using Plaintiff’s name and his prisoner number the California Department of Corrections and Rehabilitation (“CDCR”) inmate locator website, which yielded no records. See CDCR Inmate Locator, https://inmatelocator.cdcr.ca.gov/ 25 (running separate searches for “Jonas B. Foster” and then “BM3407”). Accordingly, this Court takes judicial notice of the fact the Plaintiff is no longer incarcerated. Fed. R. Evid. 201. 26 2 As stated above, Plaintiff was clearly aware that he was required to maintain an updated address as he previously filed 27 notices of change of address in this action on December 17, 2020 and December 16, 2021. (ECF Nos. 10, 17.)

28 1 respond to court order and noting “the weight of the docket-managing factor depends upon the size 2 and load of the docket, and those in the best position to know what that is are our beleaguered trial 3 judges.”). Delays have the inevitable and inherent risk that evidence will become stale or witnesses’ 4 memories will fade or be unavailable and can prejudice a defendant, thereby satisfying the third factor. 5 See Sibron v. New York, 392 U.S. 40, 57 (1968). 6 Attempting a less drastic action, such as issuing an order to show cause, would be futile 7 because Plaintiff has failed to update his address and thus any correspondence sent to him will be 8 returned. In addition, the instant dismissal is a dismissal without prejudice, which is a lesser sanction 9 than a dismissal with prejudice, thereby addressing the fifth factor. 10 Further, well over 63 days have passed since mail was returned as undeliverable and Plaintiff 11 has not updated his mailing address or otherwise communicated with the Court. Defendants have been 12 unable to take Plaintiff’s deposition and cannot serve any written discovery which prevents them from 13 defending against this action. Moreover, Plaintiff has not filed an opposition to the instant motions. 14 Lastly, delays in prosecution can prejudice the Defendants because it presents a greater likelihood that 15 evidence will be lost, or memories or events will not be recalled easily. Considering these factors and 16 those set forth above, as well as all applicable case law, the undersigned recommends Defendant's 17 motions to dismiss be granted and that this action be dismissed, without prejudice, under Fed. R. Civ. 18 P. 41(b) and Local Rules 110 and 183(b). In sum, Plaintiff has been paroled and has not notified the 19 Court or Defendants of his new address. Plaintiff thus appears to have abandoned the litigation. 20 Accordingly, dismissal without prejudice is appropriate and Defendants’ motions to dismiss should be 21 granted. Consequently, Defendant Tulare County Sheriff’s Department’s motion for summary 22 judgment should be denied as rendered moot. 23 IV. 24 RECOMMENDATIONS 25 Based on the foregoing, it is HEREBY RECOMMENDED that: 26 1. Defendants’ motions to dismiss the action be granted; and 27 2. Defendant Tulare County Sheriff’s Department motion for summary judgment be 28 denied as rendered moot. 1 These Findings and Recommendations will be submitted to the United States District Judge 2 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days 3 || after being served with these Findings and Recommendations, the parties may file written objections 4 || with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 5 || Recommendations.” The parties are advised that failure to file objections within the specified time 6 || may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 7 || 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 8 9 || IT IS SO ORDERED. A (Fe 10 |! Dated: _ April 14, 2022 OF 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28