1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GALE JOSEPH YOUNG, Case No. 1:21-cv-00132-HBK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CASE WTIHOUT PRJEUDICE1 13 v. TWENTY-ONE DAY OBJECTION PERIOD 14 CA DEPARTMENT OF CORRECTIONS, A. SHITTU, TED KUBICKI, KELLY ORDER DIRECTING CLERK TO ASSIGN A 15 SANTORO, RAFFEL DIEZ, GAVIN DISTRICT JUDGE NEWSOM, 16 (Doc. No. 8) Defendants. 17 18 This matter comes before the Court upon periodic review of the file. The undersigned 19 recommends the Court dismiss this case without prejudice due to Plaintiff’s failure to comply 20 with the Court’s February 3, 2021 Order (Doc. No. 7), update his address, and prosecute this 21 action. 22 I. FACTS AND BACKGROUND 23 Plaintiff Gale Joseph Young (“Plaintiff” or “Young”) is a state prisoner proceeding pro se 24 on his civil rights complaint filed under 42 U.S.C. § 1983 on January 27, 2021. (Doc. No. 1). On 25 February 3, 2021, the Court directed Young either to apply to proceed in forma pauperis or to pay 26
27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Ca. 2019). 28 1 the requisite filing fee within thirty days. (Doc. No. 7). The Order warned Young that the case 2 would be dismissed if he failed to comply with the Order. (Id., ¶ 3). The Order was served on 3 Young. (See docket). Young did not timely comply or otherwise respond to the Court’s February 4 3, 2021 Order. (See docket). On March 18, 2021, after Young missed the deadline set forth in the 5 February 3 Order, the Court issued an Order to Show Cause directing Young to show cause why 6 the action should not be dismissed for failure to prosecute. (Doc. No. 8). The Show Cause Order 7 was returned as undeliverable on April 16, 2021. (See docket). Young’s change of address was 8 due no later than June 24, 2021. Local Rule 183(b). Young has not filed an updated address, to 9 the extent he has been transferred or released as required by Local Rule 182(f). (See docket). 10 II. APPLICABLE LAW 11 This Court’s Local Rules require litigants to keep the court apprised of their current 12 address and 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 14 directed to a plaintiff in propria persona by the Clerk is returned by the U.S. Postal Service, and if such plaintiff fails to notify the Court 15 and opposing parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without prejudice 16 for failure to prosecute.” 17 E.D. Cal. Loc. R. 183(b) (2019); see also Local Rule 182(f) (all parties are “under a continuing 18 duty” to notify the clerk of “any change of address.”). Precedent supports a dismissal of a case 19 when a litigant fails to keep the court appraised on his address. Carey v. King, 856 F.2d 1439 20 (9th Cir. 1988) (affirming lower court and finding no abuse of discretion when district court 21 dismissed case without prejudice after pro se plaintiff did not comply with local rule requiring 22 pro se plaintiffs keep court apprised of addresses at all times); Hanley v. Opinski, Case No. 1:16- 23 cv-391-DAD-SAB, 2018 WL 3388510 (E.D. Ca. July 10, 2018) (dismissing action for failure to 24 prosecute and failure to provide court with current address). 25 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action 26 when a litigant fails to prosecute an action or fails to comply with other Rules or with a court 27 order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 28 (9th Cir. 2019) (citations omitted); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 1 683, 689 (9th Cir. 2005) (“[T]he consensus among our sister circuits, with which we agree, is that 2 courts may dismiss under Rule 41(b) sua sponte, at least under certain circumstances.”). Local 3 Rule 110 similarly permits the Court to impose sanctions on a party who fails to comply with the 4 court’s Rules or any order of court. 5 Involuntary dismissal is a harsh penalty, but it “is incumbent upon the Court to manage its 6 docket without being subject to routine noncompliance of litigants.” Pagtalunan v. Galaza, 291 7 F.3d 639, 642 (9th Cir. 2002). Before dismissing an action under Fed. R. Civ. P. 41, the Court 8 must consider: (1) the public interest in expeditious resolution of litigation; (2) the court’s need to 9 manage a docket; (3) the risk of prejudice to defendant; (4) public policy favoring disposition on 10 the merits; and (5) the availability of less drastic sanctions. See Applied Underwriters, 913 F.3d 11 at 889 (noting that these five factors “must” be analyzed before a Rule 41 involuntary dismissal) 12 (emphasis added); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (reviewing 13 five factors and independently reviewing the record because district court did not make finding as 14 to each factor); but see Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000) (listing 15 the same five factors, but noting the court need not make explicit findings as to each) (emphasis 16 added); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (affirming dismissal of pro se § 17 1983 action when plaintiff did not amend caption to remove “et al” as the court directed and 18 reiterating that an explicit finding of each factor is not required by the district court). 19 III. ANALYSIS 20 The undersigned considers each of the above-stated factors and concludes dismissing this 21 case is warranted. The expeditious resolution of litigation is deemed to be in the public interest, 22 satisfying the first factor. Yourish v. California Amplifier, 191 F.3d 983, 990–91 (9th Cir. 1999). 23 Turning to the second factor, the Court’s need to efficiently manage its docket cannot be 24 overstated. This Court has “one of the heaviest caseloads in the nation,” and due to unfilled 25 judicial vacancies, which is further exacerbated by the Covid-19 pandemic, operates under a 26 declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 27 Emergency in the Eastern District of California. The Court’s time is better spent on its other 28 matters than needlessly consumed managing a case with a recalcitrant litigant.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GALE JOSEPH YOUNG, Case No. 1:21-cv-00132-HBK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CASE WTIHOUT PRJEUDICE1 13 v. TWENTY-ONE DAY OBJECTION PERIOD 14 CA DEPARTMENT OF CORRECTIONS, A. SHITTU, TED KUBICKI, KELLY ORDER DIRECTING CLERK TO ASSIGN A 15 SANTORO, RAFFEL DIEZ, GAVIN DISTRICT JUDGE NEWSOM, 16 (Doc. No. 8) Defendants. 17 18 This matter comes before the Court upon periodic review of the file. The undersigned 19 recommends the Court dismiss this case without prejudice due to Plaintiff’s failure to comply 20 with the Court’s February 3, 2021 Order (Doc. No. 7), update his address, and prosecute this 21 action. 22 I. FACTS AND BACKGROUND 23 Plaintiff Gale Joseph Young (“Plaintiff” or “Young”) is a state prisoner proceeding pro se 24 on his civil rights complaint filed under 42 U.S.C. § 1983 on January 27, 2021. (Doc. No. 1). On 25 February 3, 2021, the Court directed Young either to apply to proceed in forma pauperis or to pay 26
27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Ca. 2019). 28 1 the requisite filing fee within thirty days. (Doc. No. 7). The Order warned Young that the case 2 would be dismissed if he failed to comply with the Order. (Id., ¶ 3). The Order was served on 3 Young. (See docket). Young did not timely comply or otherwise respond to the Court’s February 4 3, 2021 Order. (See docket). On March 18, 2021, after Young missed the deadline set forth in the 5 February 3 Order, the Court issued an Order to Show Cause directing Young to show cause why 6 the action should not be dismissed for failure to prosecute. (Doc. No. 8). The Show Cause Order 7 was returned as undeliverable on April 16, 2021. (See docket). Young’s change of address was 8 due no later than June 24, 2021. Local Rule 183(b). Young has not filed an updated address, to 9 the extent he has been transferred or released as required by Local Rule 182(f). (See docket). 10 II. APPLICABLE LAW 11 This Court’s Local Rules require litigants to keep the court apprised of their current 12 address and 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 14 directed to a plaintiff in propria persona by the Clerk is returned by the U.S. Postal Service, and if such plaintiff fails to notify the Court 15 and opposing parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without prejudice 16 for failure to prosecute.” 17 E.D. Cal. Loc. R. 183(b) (2019); see also Local Rule 182(f) (all parties are “under a continuing 18 duty” to notify the clerk of “any change of address.”). Precedent supports a dismissal of a case 19 when a litigant fails to keep the court appraised on his address. Carey v. King, 856 F.2d 1439 20 (9th Cir. 1988) (affirming lower court and finding no abuse of discretion when district court 21 dismissed case without prejudice after pro se plaintiff did not comply with local rule requiring 22 pro se plaintiffs keep court apprised of addresses at all times); Hanley v. Opinski, Case No. 1:16- 23 cv-391-DAD-SAB, 2018 WL 3388510 (E.D. Ca. July 10, 2018) (dismissing action for failure to 24 prosecute and failure to provide court with current address). 25 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action 26 when a litigant fails to prosecute an action or fails to comply with other Rules or with a court 27 order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 28 (9th Cir. 2019) (citations omitted); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 1 683, 689 (9th Cir. 2005) (“[T]he consensus among our sister circuits, with which we agree, is that 2 courts may dismiss under Rule 41(b) sua sponte, at least under certain circumstances.”). Local 3 Rule 110 similarly permits the Court to impose sanctions on a party who fails to comply with the 4 court’s Rules or any order of court. 5 Involuntary dismissal is a harsh penalty, but it “is incumbent upon the Court to manage its 6 docket without being subject to routine noncompliance of litigants.” Pagtalunan v. Galaza, 291 7 F.3d 639, 642 (9th Cir. 2002). Before dismissing an action under Fed. R. Civ. P. 41, the Court 8 must consider: (1) the public interest in expeditious resolution of litigation; (2) the court’s need to 9 manage a docket; (3) the risk of prejudice to defendant; (4) public policy favoring disposition on 10 the merits; and (5) the availability of less drastic sanctions. See Applied Underwriters, 913 F.3d 11 at 889 (noting that these five factors “must” be analyzed before a Rule 41 involuntary dismissal) 12 (emphasis added); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (reviewing 13 five factors and independently reviewing the record because district court did not make finding as 14 to each factor); but see Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000) (listing 15 the same five factors, but noting the court need not make explicit findings as to each) (emphasis 16 added); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (affirming dismissal of pro se § 17 1983 action when plaintiff did not amend caption to remove “et al” as the court directed and 18 reiterating that an explicit finding of each factor is not required by the district court). 19 III. ANALYSIS 20 The undersigned considers each of the above-stated factors and concludes dismissing this 21 case is warranted. The expeditious resolution of litigation is deemed to be in the public interest, 22 satisfying the first factor. Yourish v. California Amplifier, 191 F.3d 983, 990–91 (9th Cir. 1999). 23 Turning to the second factor, the Court’s need to efficiently manage its docket cannot be 24 overstated. This Court has “one of the heaviest caseloads in the nation,” and due to unfilled 25 judicial vacancies, which is further exacerbated by the Covid-19 pandemic, operates under a 26 declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 27 Emergency in the Eastern District of California. The Court’s time is better spent on its other 28 matters than needlessly consumed managing a case with a recalcitrant litigant. Indeed, “trial 1 courts do not have time to waste on multiple failures by aspiring litigants to follow the rules and 2 requirements of our courts.” Pagtalunan, 291 F.3d at 644 (Trott, J., concurring in affirmance of 3 district court’s involuntary dismissal with prejudice of habeas petition where petitioner failed to 4 timely respond to court order and noting “the weight of the docket-managing factor depends upon 5 the size and load of the docket, and those in the best position to know what that is are our 6 beleaguered trial judges.”). Delays have the inevitable and inherent risk that evidence will 7 become stale or witnesses’ memories will fade or be unavailable and can prejudice a defendant, 8 thereby satisfying the third factor. See Sibron v. New York, 392 U.S. 40, 57 (1968). Finally a less 9 drastic remedies in lieu of dismissal, such as, directing plaintiff to submit an updated address, or 10 second order to show cause why the case should not be dismissed for failure to comply with 11 Local Rules would be an act of futility because the order would be returned without delivery. 12 Additionally, the instant dismissal is a dismissal without prejudice, which is a lesser sanction than 13 a dismissal with prejudice, thereby addressing the fifth factor. 14 Young failed to timely comply with the February 3, 2021 Order directing that he applies 15 to proceed in forma pauperis or pay the filing fee. The Court’s March 18, 2021 Order to Show 16 Cause was returned as undeliverable. And contrary to Local Rule 183(b), more than 63 days have 17 passed since mail was returned as undeliverable and Young has not updated his mailing address 18 or otherwise contacted the Court. After considering the factors set forth supra and binding case 19 law, the undersigned recommends dismissal, without prejudice, under Fed. R. Civ. P. 41(b) and 20 Local Rules 110 and 183(b). 21 Accordingly, it is ORDERED: 22 The Clerk shall assign a District Judge to this case. 23 It is further RECOMMENDED: 24 This case be dismissed without prejudice under Fed. R. Civ. P. 41(b), and Local Rules 110 25 and 183 (b). 26 NOTICE TO PARTIES 27 These findings and recommendations will be submitted to the United States district judge 28 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within twenty-one 1 | (21) days after being served with these findings and recommendations, a party may file written 2 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 3 | Findings and Recommendations.” Parties are advised that failure to file objections within the 4 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 5 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 6 7 IT IS SO ORDERED. | Dated: __June 29, 2021 Mila Nh. fareh Base 9 HELENA M. BARCH-KUCHTA 10 UNITED STATES MAGISTRATE JUDGE
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