(PC) Johnson v. Cates

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SEDRIC EUGENE JOHNSON, No. 1:23-cv-00361 KES GSA (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 13 v. Doc. 12 14 BRIAN CATES, et al., 15 Defendants. 16 17 Plaintiff, a former state prisoner proceeding pro se, has filed this civil rights action 18 seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States magistrate 19 judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On June 12, 2023, plaintiff filed a change of address with the court in Johnson v. Cates, 21 No. 1:23-cv-00437-KES-GSA, a duplicative action to the instant action. The Clerk of Court, 22 pursuant to the office’s procedure, also updated plaintiff’s address in the instant matter. Doc. 8. 23 On March 22, 2024, an order served on plaintiff in Case No. 1:23-cv-0437 was returned to the 24 Court as “Undeliverable, Attempted, Not Known, Unable to Forward.” Therefore, on March 25, 25 2024, the assigned magistrate judge issued an order in the present action directing plaintiff to file 26 his current address with the court by May 24, 2024. Doc. 9. Plaintiff failed to respond to the 27 order. On June 6, 2024, the assigned magistrate judge ordered plaintiff to show cause by June 20, 28 2024 why the matter should not be dismissed for failure to obey a court order or, alternatively, to 1 verify his current address or file a notice of change of address by that date. Doc. 11. Plaintiff 2 failed to respond to the order to show cause. 3 On July 3, 2024, the assigned magistrate judge issued findings and recommendations 4 recommending dismissal of this action, without prejudice, for plaintiff’s failure to prosecute this 5 action. Doc. 12. (“F&R”). The findings and recommendations were served on plaintiff and 6 contained notice that any objections thereto were to be filed within fourteen days after service. 7 Id. at 5. No objections were filed, and the deadline to do so has expired. 8 In accordance with the provisions of 28 U.S.C. § 636(b)(1), the court has conducted a de 9 novo review of the case. Having carefully reviewed the file, the court concludes that the findings 10 that plaintiff failed to comply with the court’s orders and failed to prosecute his case are 11 supported by the record. The Ninth Circuit has held that, prior to dismissing a case as a sanction, 12 the court must consider “(1) the public's interest in expeditious resolution of litigation; (2) the 13 court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 14 favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives.” 15 Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). 16 The court has independently considered the Henderson factors and finds that they weigh 17 in favor of dismissal. The public’s interest in expeditious resolution of litigation and the court’s 18 need to manage its docket weigh in favor of dismissal because the court cannot effectively 19 manage its docket nor can the litigation be expeditiously resolved if plaintiff does not litigate his 20 case. See Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (“The public’s interest in 21 expeditious resolution of litigation always favors dismissal.”). Plaintiff has not appeared in this 22 case since March 17, 2023. Doc. 7. Moreover, the court has issued several orders requiring 23 plaintiff’s action, and plaintiff has not responded to them. Docs. 9, 11. As to the third factor, the 24 risk of prejudice to the defendant also weighs in favor of dismissal, given that unreasonable delay 25 in a case gives rise to a presumption of injury to the defendant. See, e.g., Anderson v. Air W., 26 Inc., 542 F.2d 522, 524 (9th Cir. 1976). While the fourth consideration, that public policy favors 27 disposition of cases on their merits, generally weighs against dismissal, here it lends little support 28 “to a party whose responsibility it is to move a case toward disposition on the merits but whose 1 | conduct impedes progress in that direction.” In re Phenylpropanolamine (PPA) Products Liab. 2 | Litig., 460 F.3d 1217, 1228 (9th Cir. 2006) (citations omitted). Finally, the court’s warnings in its 3 | orders issued March 25, 2024, and June 6, 2024, that plaintiff's failure to comply with the court’s 4 | orders would result in dismissal of this action (Docs. 9, 11) satisfies the “considerations of the 5 | alternatives” requirement. See Ferdik vy. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). 6 | Additionally, at this stage in the proceedings there is little else available to the court that would 7 | constitute a satisfactory lesser sanction given the court’s inability to communicate with plaintiff. See, 8 | e.g., Gaston v. Marean, 2020 WL 4059200, at *3 (E.D. Cal. July 20, 2020) (“given the Court’s 9 | apparent inability to communicate with Plaintiff, there are no other reasonable alternatives 10 | available to address Plaintiff's failure to prosecute this action and his failure to apprise the Court 11 | of his current address”). 12 Accordingly, IT IS HEREBY ORDERED: 13 1. The findings and recommendations issued on July 3, 2024, Doc. 12, are adopted in 14 full; 15 2. This matter is dismissed without prejudice for failure to prosecute; and 16 3. The Clerk of the Court is directed to close this case. 17 18 19 | IT IS SO ORDERED. _ 20 Dated: _ August 12, 2024 4A . UNITED STATES DISTRICT JUDGE

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