(PC) McGee v. Galager

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHNNY MCGEE, Case No. 1:21-cv-00837-KES-HBK (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 13 v. Doc. No. 30 14 GALAGER, PATTERSON, YOKUM and WRIGHT, 15 Defendants. 16

17 18 Plaintiff Johnny McGee is a state prisoner proceeding pro se and in forma pauperis in this 19 civil rights action brought pursuant to 42 U.S.C. § 1983. This matter was referred to a United 20 States magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 This action proceeds on plaintiff’s second amended complaint (“SAC”) filed on June 14, 22 2024. (Doc. 28.) On June 18, 2024, the assigned magistrate judge screened the SAC, finding that 23 it stated an Eighth Amendment failure to protect claim against defendants Wright and Yokum but 24 no other claim. (Doc. 29 at 7.) The magistrate judge afforded plaintiff the option to either (1) file 25 a notice to stand on his SAC and voluntarily dismiss the claims deemed not cognizable in the 26 screening order; or (2) stand on his SAC subject to the magistrate judge recommending the 27 district court dismiss certain claims and defendants. (Id. at 7–8.) The screening order was served 28 on plaintiff at his address of record and contained a notice that plaintiff’s response was due by 1 July 23, 2024.1 (Id.) On July 10, 2024, the screening order was returned to the Court as 2 “Undeliverable, RTS, Attempted-Not Known, Unable to Forward.” 3 Plaintiff was required to update his address within 63 days per Local Rule 183(b). After 4 plaintiff failed to do so, on September 19, 2024, the assigned magistrate judge issued findings and 5 recommendations to dismiss this action without prejudice for failure to prosecute. (Doc. 30.) 6 The findings and recommendations were served on plaintiff and contained notice that any 7 objections thereto were to be filed within fourteen days after service. (Id. at 3.) No objections 8 were filed, and the deadline to do so has expired. The findings and recommendations were also 9 returned to the court as undeliverable. 10 In accordance with the provisions of 28 U.S.C. § 636(b)(1), the Court has conducted a de 11 novo review of the case. Having carefully reviewed the file, the Court concludes that the finding 12 that plaintiff failed to prosecute his case is supported by the record. The Ninth Circuit has held 13 that, prior to dismissing a case for lack of prosecution, district courts must consider “(1) the 14 public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 15 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on 16 their merits; and (5) the availability of less drastic alternatives.” Henderson v. Duncan, 779 F.2d 17 1421, 1423 (9th Cir. 1986). 18 The Court has independently considered the Henderson factors and finds that they weigh 19 in favor of dismissal. The public’s interest in expeditious resolution of litigation and the Court’s 20 need to manage its docket weigh in favor of dismissal because the Court cannot effectively 21 manage its docket nor can the litigation be expeditiously resolved if plaintiff does not litigate his 22 case. See Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (“The public’s 23 interest in expeditious resolution of litigation always favors dismissal.”). The assigned magistrate 24 judge issued a screening order that required plaintiff’s action and plaintiff has not responded to it. 25 (Doc. 29.) Moreover, the screening order was returned as undeliverable, and plaintiff has failed 26 to update his address. As to the third factor, the risk of prejudice to the defendant also weighs in 27 1 Absent notice of a party’s change of address, service of documents at the prior address of the 28 party is fully effective. Local Rule 182(f). 1 | favor of dismissal, given that unreasonable delay in a case gives rise to a presumption of injury to 2 | the defendant. See, e.g., Anderson v. Air W., Inc., 542 F.2d 522, 524 (9th Cir. 1976). 3 While the fourth consideration, that public policy favors disposition of cases on their 4 | merits, generally weighs against dismissal, here it lends little support “to a party whose 5 | responsibility it is to move a case toward disposition on the merits but whose conduct impedes 6 || progress in that direction.” In re Phenylpropanolamine (PPA) Products Liab. Litig., 460 F.3d 7 | 1217, 1228 (th Cir. 2006) (citations omitted). Finally, the warning issued in the June 18, 2024 8 | screening order that plaintiffs failure to comply with that order may result in dismissal of this 9 | action, (Doc. 29 at 8), satisfies the “considerations of the alternatives” requirement. See Ferdik v. 10 | Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Additionally, at this stage in the proceedings 11 | there is little else available to the Court that would constitute a satisfactory lesser sanction given 12 | the Court’s inability to communicate with plaintiff. See, e.g., Gaston v. Marean, 2020 WL 13 | 4059200, at *3 (E.D. Cal. July 20, 2020) (“given the Court’s apparent inability to communicate 14 | with Plaintiff, there are no other reasonable alternatives available to address Plaintiffs failure to 15 | prosecute this action and his failure to apprise the Court of his current address”). 16 Accordingly: 17 1. The findings and recommendations issued on September 19, 2024, (Doc. 30), are 18 adopted in full; 19 2. This action is dismissed without prejudice based on plaintiff’s failure to prosecute 20 the action; and 21 3. The Clerk of the Court is directed to close this case. 22 23 94 | □□ □□ SO ORDERED. _ 25 Dated: _ November 21, 2024 4h UNITED STATES DISTRICT JUDGE

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