(PC) Jones v. Pina

Opinion

TERRY JONES, No. 1:23-cv-01271-KES-GSA (PC) Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING v. ACTION, WITHOUT PREJUDICE, FOR FAILURE TO PROSECUTE AND FAILURE PINA, et al., TO COMPLY WITH COURT ORDERS Defendants. Doc. 17 Plaintiff, a former state prisoner proceeding pro se, filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. Plaintiff initiated this action on August 24, 2023, while he was still incarcerated. Doc. 1. He was granted in forma pauperis (“IFP”) status on August 28, 2023. Doc. 7. Thereafter, he filed four notices of change of address indicating he was no longer in custody. Docs. 8–11. The magistrate judge directed the Clerk of Court to send Plaintiff the IFP application appropriate for non-prisoners. Doc. 12. Plaintiff filled out this second IFP application and the Court granted the motion. Docs. 13, 14. The Court’s order was mailed to Plaintiff’s address of record on June 6, 2024, but the mailing was later returned as “Undeliverable, Insufficient Address.” See docket. On September 3, 2024, the Court directed Plaintiff to show cause why the matter should not be dismissed for failure to keep his address current. Doc. 15. As before, the mailing was returned as “Undeliverable, Unclaimed.” See docket. On September 30, 2024, the magistrate judge issued findings and recommendations recommending dismissal of the action for Plaintiff’s failure to keep his address updated. Doc. 17. The findings and recommendations were served on Plaintiff and contained notice that any objections thereto were to be filed within fourteen (14) days of service. Id. at 2. The findings and recommendations were later returned to the Court as “Undeliverable, Unclaimed,” and Plaintiff has not otherwise provided an updated address or communicated with the Court. See docket. Pursuant to 28 U.S.C. § 636(b)(1), this Court has conducted a de novo review. Having carefully reviewed the file, the Court concludes the findings are supported by the record. However, in recommending dismissal, the magistrate judge did not address the factors identified by the Ninth Circuit in Henderson v. Duncan, 779 F.2d 1421 (9th Cir. 1986). That analysis should be conducted when recommending dismissal of an action. See Pagtalunan v. Galaza, 291 F.3d 639, 641 (9th Cir. 2002). Thus, the Court makes additional findings to determine whether dismissal is warranted. The Court weighs the following factors: “(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 defendants; (4) the availability of less drastic alternatives; and (5) the public policy of favoring disposition of cases on their merits.” Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992). The first factor is met as “[t]he public’s interest in expeditious resolution of litigation always favors dismissal.” Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). Next, the Court’s management of its docket is negatively impacted by a litigant’s failure to follow the court’s orders. See Ferdik, 963 F.2d at 1261. Thus, the second factor also favors dismissal. The third factor also favors dismissal. While “[l]imited delays and the prejudice to a defendant from the pendency of a lawsuit are realities of the system that have to be accepted,” courts also relate the “risk of prejudice to the plaintiff’s reason for defaulting.” Yourish, 191 F.3d at 991 (citations omitted). A rebuttable presumption of prejudice arises when a plaintiff unreasonably delays prosecution of an action. In re Eisen, 31 F.3d 1447, 1452–53 (9th Cir. 1994) (citations omitted). Here, Plaintiff has not offered any excuse for his failure to comply with the Court’s orders. The fourth factor—the availability of less drastic sanctions—also weighs in favor of dismissal. Despite the Court’s attempts to obtain a response, Plaintiff appears to have abandoned this action. “The district court need not exhaust every sanction short of dismissal before finally dismissing a case but must explore possible and meaningful alternatives.” Henderson, 779 F.2d at 1424. The fifth factor ordinarily weighs against dismissal, as public policy favors deciding cases on the merits. However, it is Plaintiff's responsibility to move litigation toward disposition ata reasonable pace and to avoid dilatory tactics. See Morris v. Morgan Stanley, 942 F.2d 648, 652 (9th Cir. 1991). Plaintiff has not communicated with the Court for nearly a year and has failed to update his address, and the case cannot proceed on the merits in the absence of Plaintiffs participation. Accordingly, IT IS HEREBY ORDERED that: 1. The findings and recommendations issued September 30, 2024 (Doc. 17), are ADOPTED IN FULL; 2. This matter is DISMISSED without prejudice for failure to file a notice of current address with the Court, and 3. The Clerk of Court is directed to CLOSE this case. IT IS SO ORDERED. _ Dated: _ December 19, 2024 4A . UNITED STATES DISTRICT JUDGE