1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER MULDREW, No. 1:22-cv-01041 KES GSA (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. ORDER RECOMMENDING THIS MATTER BE DISMISSED FOR FAILURE TO 14 O. MARROQUIN, et al., PROSECUTE AND FOR FAILURE TO OBEY A COURT ORDER 15 Defendants. (ECF No. 13) 16 PLAINTIFF’S OBJECTIONS DUE IN 17 FOURTEEN DAYS 18 19 Plaintiff, a former state prisoner proceeding pro se and in forma pauperis, has filed this 20 civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United 21 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 For the reasons stated below, the undersigned will recommend that this matter be 23 dismissed without prejudice for failure to prosecute and for failure to obey a court order. Plaintiff 24 will be given fourteen days to file objections. 25 I. RELEVANT FACTS 26 A. Plaintiff Granted In Forma Pauperis Status 27 On August 18, 2022, Plaintiff’s complaint was docketed in this Court. ECF No. 1. On 28 October 3, 2022, after Plaintiff had submitted a proper application to proceed in forma pauperis 1 (see ECF No. 7), Plaintiff was granted in forma pauperis status (see ECF No. 8). 2 B. Plaintiff Files Notice of Change of Address With Court 3 On July 29, 2024, because a significant amount of time had passed since Plaintiff’s 4 complaint had been docketed in this Court in August of 2022, prior to screening Plaintiff’s 5 complaint, the Court ordered Plaintiff to file an updated change of address with the Court. ECF 6 No. 11 (minute order). The same day, coincidentally, a notice of change of address that Plaintiff 7 had filed with the Court was docketed. ECF No. 12. The address in Plaintiff’s notice appeared to 8 be residential, indicating that Plaintiff was no longer incarcerated. See id. 9 On August 9, 2024, the minute order that had directed Plaintiff to file a notice of current 10 address with the Court – which had been sent to Plaintiff’s last prison address – was returned to 11 the Court marked “Undeliverable, Return to Sender, Paroled.” See 8/9/24 (docket entry). As a 12 result, the Court’s minute order was re-sent to Plaintiff at the new residential address that Plaintiff 13 had recently provided to the Court. 14 C. Plaintiff Ordered to File Non-Prisoner In Forma Pauperis Application 15 On June 30, 2025, because Plaintiff was no longer incarcerated, the Court issued an order 16 which directed Plaintiff to file a non-prisoner application to proceed in forma pauperis. ECF No. 17 13. Plaintiff was given seven days to comply with the Court’s order. Id. at 2. 18 More than seven days have passed and Plaintiff has not filed a non-prisoner in forma 19 pauperis application, nor has he filed a request for an extension of time to do so. Plaintiff has not 20 responded to the Court’s order in any way. In addition, the Court notes for the record that its 21 order has not been returned to it marked, “Undeliverable,” or “Return to Sender,” either. 22 II. APPLICABLE LAW 23 A. New In Forma Pauperis Application Required Upon Release From Prison 24 “[A] released prisoner may proceed in forma pauperis upon satisfying the poverty 25 provisions applicable to non-prisoners.” DeBlasio v. Gilmore, 315 F.3d 396, 398-99 (4th Cir. 26 2003) (brackets added) (collecting cases); McGann v. Comm’r, Soc. Sec. Admin., 96 F.3d 29, 30 27 (2d Cir. 1996); see In re Prison Litigation Reform Act, 105 F.3d 1131, 1139 (6th Cir. 1997) 28 (stating upon release, obligation to pay remainder of fees to be determined solely on question of 1 whether individual qualifies for pauper status). Upon release from prison, a former inmate must 2 file an updated in forma pauperis application if he wishes to continue with in forma pauperis 3 status. See Adler v. Gonzalez, No. 1:11-cv-1915-LJO-MJS (PC), 2015 WL 4041772, at *2 (E.D. 4 Cal. July 1, 2015), report and reco. adopted, 2015 WL 4668668 (E.D. Cal. Aug. 6, 2015) (stating 5 updated in forma pauperis application required if plaintiff wishes to continue with in forma 6 pauperis status); Webb v. Lambert, No. CV 12-00041-H-DLC, 2012 WL 5931889, at *1 (D. 7 Mont. Aug. 29, 2012) (citing DeBlasio, 315 F.3d at 399). 8 B. Federal Rule of Civil Procedure 41(b) and Local Rules 110 9 Federal Rule of Civil Procedure 41 permits this Court to dismiss a matter if a plaintiff fails 10 to prosecute or if he fails to comply with a court order. See Fed. R. Civ. P. 41(b). Local Rule 11 110 also permits the imposition of sanctions when a party fails to comply with a court order. L.R. 12 110. 13 C. Malone Factors 14 The Ninth Circuit has clearly identified the factors to consider when dismissing a case for 15 failure to comply with a court order. It writes: 16 A district court must weigh five factors in determining whether to dismiss a case 17 for failure to comply with a court order: “(1) the public’s interest in expeditious 18 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on 19 their merits; and (5) the availability of less drastic sanctions.” 20 21 Malone v. United States Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (quoting Thompson v. 22 Hous. Auth. of City of Los Angeles, 782 F.2d 829 (9th Cir. 1986) (per curiam)). 23 III. DISCUSSION 24 A. Rule 41(b) and Local Rule 110 Support Dismissal of This Case 25 Plaintiff was proceeding with in forma pauperis status while he was incarcerated. See 26 ECF No. 8 (order granting Plaintiff in forma pauperis status). As a result, once he was released 27 from prison, in order to continue to proceed with this case with in forma pauperis status, Plaintiff 28 was required either to complete and file an application to proceed in forma pauperis for non- 1 prisoners, or to pay the remainder of the filing fee in full. 2 To date, Plaintiff has neither filed the non-prisoner in forma pauperis application with the 3 Court nor paid what remains of the filing fee. Plaintiff has not responded to the Court’s order in 4 any way, nor has the Court’s order been returned indicating that Plaintiff is no longer living at the 5 last residential address that he provided to the Court. 6 It is well-settled that mail delivered is presumed to have been received. See Hagner v. 7 United States, 285 U.S. 427, 430–31 (1932) (stating mail put in post office is presumed received 8 and citing Rosenthal v. Walker, 111 U.S. 185, 193 (1884)); see also Nunlev v. City of Los 9 Angeles, 52 F.3d 792, 796 (9th Cir. 1995). This being the case, the Court is free to presume that 10 Plaintiff received its order that directed him to file a non-prisoner in forma pauperis application 11 with the Court, but that Plaintiff has simply chosen to ignore the Court’s order and in so doing he 12 has effectively abandoned this case.
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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 CHRISTOPHER MULDREW, No. 1:22-cv-01041 KES GSA (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. ORDER RECOMMENDING THIS MATTER BE DISMISSED FOR FAILURE TO 14 O. MARROQUIN, et al., PROSECUTE AND FOR FAILURE TO OBEY A COURT ORDER 15 Defendants. (ECF No. 13) 16 PLAINTIFF’S OBJECTIONS DUE IN 17 FOURTEEN DAYS 18 19 Plaintiff, a former state prisoner proceeding pro se and in forma pauperis, has filed this 20 civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United 21 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 For the reasons stated below, the undersigned will recommend that this matter be 23 dismissed without prejudice for failure to prosecute and for failure to obey a court order. Plaintiff 24 will be given fourteen days to file objections. 25 I. RELEVANT FACTS 26 A. Plaintiff Granted In Forma Pauperis Status 27 On August 18, 2022, Plaintiff’s complaint was docketed in this Court. ECF No. 1. On 28 October 3, 2022, after Plaintiff had submitted a proper application to proceed in forma pauperis 1 (see ECF No. 7), Plaintiff was granted in forma pauperis status (see ECF No. 8). 2 B. Plaintiff Files Notice of Change of Address With Court 3 On July 29, 2024, because a significant amount of time had passed since Plaintiff’s 4 complaint had been docketed in this Court in August of 2022, prior to screening Plaintiff’s 5 complaint, the Court ordered Plaintiff to file an updated change of address with the Court. ECF 6 No. 11 (minute order). The same day, coincidentally, a notice of change of address that Plaintiff 7 had filed with the Court was docketed. ECF No. 12. The address in Plaintiff’s notice appeared to 8 be residential, indicating that Plaintiff was no longer incarcerated. See id. 9 On August 9, 2024, the minute order that had directed Plaintiff to file a notice of current 10 address with the Court – which had been sent to Plaintiff’s last prison address – was returned to 11 the Court marked “Undeliverable, Return to Sender, Paroled.” See 8/9/24 (docket entry). As a 12 result, the Court’s minute order was re-sent to Plaintiff at the new residential address that Plaintiff 13 had recently provided to the Court. 14 C. Plaintiff Ordered to File Non-Prisoner In Forma Pauperis Application 15 On June 30, 2025, because Plaintiff was no longer incarcerated, the Court issued an order 16 which directed Plaintiff to file a non-prisoner application to proceed in forma pauperis. ECF No. 17 13. Plaintiff was given seven days to comply with the Court’s order. Id. at 2. 18 More than seven days have passed and Plaintiff has not filed a non-prisoner in forma 19 pauperis application, nor has he filed a request for an extension of time to do so. Plaintiff has not 20 responded to the Court’s order in any way. In addition, the Court notes for the record that its 21 order has not been returned to it marked, “Undeliverable,” or “Return to Sender,” either. 22 II. APPLICABLE LAW 23 A. New In Forma Pauperis Application Required Upon Release From Prison 24 “[A] released prisoner may proceed in forma pauperis upon satisfying the poverty 25 provisions applicable to non-prisoners.” DeBlasio v. Gilmore, 315 F.3d 396, 398-99 (4th Cir. 26 2003) (brackets added) (collecting cases); McGann v. Comm’r, Soc. Sec. Admin., 96 F.3d 29, 30 27 (2d Cir. 1996); see In re Prison Litigation Reform Act, 105 F.3d 1131, 1139 (6th Cir. 1997) 28 (stating upon release, obligation to pay remainder of fees to be determined solely on question of 1 whether individual qualifies for pauper status). Upon release from prison, a former inmate must 2 file an updated in forma pauperis application if he wishes to continue with in forma pauperis 3 status. See Adler v. Gonzalez, No. 1:11-cv-1915-LJO-MJS (PC), 2015 WL 4041772, at *2 (E.D. 4 Cal. July 1, 2015), report and reco. adopted, 2015 WL 4668668 (E.D. Cal. Aug. 6, 2015) (stating 5 updated in forma pauperis application required if plaintiff wishes to continue with in forma 6 pauperis status); Webb v. Lambert, No. CV 12-00041-H-DLC, 2012 WL 5931889, at *1 (D. 7 Mont. Aug. 29, 2012) (citing DeBlasio, 315 F.3d at 399). 8 B. Federal Rule of Civil Procedure 41(b) and Local Rules 110 9 Federal Rule of Civil Procedure 41 permits this Court to dismiss a matter if a plaintiff fails 10 to prosecute or if he fails to comply with a court order. See Fed. R. Civ. P. 41(b). Local Rule 11 110 also permits the imposition of sanctions when a party fails to comply with a court order. L.R. 12 110. 13 C. Malone Factors 14 The Ninth Circuit has clearly identified the factors to consider when dismissing a case for 15 failure to comply with a court order. It writes: 16 A district court must weigh five factors in determining whether to dismiss a case 17 for failure to comply with a court order: “(1) the public’s interest in expeditious 18 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on 19 their merits; and (5) the availability of less drastic sanctions.” 20 21 Malone v. United States Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (quoting Thompson v. 22 Hous. Auth. of City of Los Angeles, 782 F.2d 829 (9th Cir. 1986) (per curiam)). 23 III. DISCUSSION 24 A. Rule 41(b) and Local Rule 110 Support Dismissal of This Case 25 Plaintiff was proceeding with in forma pauperis status while he was incarcerated. See 26 ECF No. 8 (order granting Plaintiff in forma pauperis status). As a result, once he was released 27 from prison, in order to continue to proceed with this case with in forma pauperis status, Plaintiff 28 was required either to complete and file an application to proceed in forma pauperis for non- 1 prisoners, or to pay the remainder of the filing fee in full. 2 To date, Plaintiff has neither filed the non-prisoner in forma pauperis application with the 3 Court nor paid what remains of the filing fee. Plaintiff has not responded to the Court’s order in 4 any way, nor has the Court’s order been returned indicating that Plaintiff is no longer living at the 5 last residential address that he provided to the Court. 6 It is well-settled that mail delivered is presumed to have been received. See Hagner v. 7 United States, 285 U.S. 427, 430–31 (1932) (stating mail put in post office is presumed received 8 and citing Rosenthal v. Walker, 111 U.S. 185, 193 (1884)); see also Nunlev v. City of Los 9 Angeles, 52 F.3d 792, 796 (9th Cir. 1995). This being the case, the Court is free to presume that 10 Plaintiff received its order that directed him to file a non-prisoner in forma pauperis application 11 with the Court, but that Plaintiff has simply chosen to ignore the Court’s order and in so doing he 12 has effectively abandoned this case. Thus, these facts warrant a dismissal of this matter in accord 13 with Rule 41(b) and Local Rule 110. 14 B. Application of Malone Factors Supports the Dismissal of This Case 15 1. Expeditious Resolution of Litigation; Court’s Need to Manage Its Docket 16 Plaintiff has been given more than ample time to file a non-prisoner in forma pauperis 17 application with the Court. Yet, he has failed to respond to that order of the Court or requested an 18 extension of time to do so, nor has he contacted the Court to provide exceptional reasons for not 19 having done so. 20 The Eastern District Court has an unusually large caseload.1 “[T]he goal of fairly 21 dispensing justice . . . is compromised when the Court is forced to devote its limited resources to 22 the processing of frivolous and repetitious requests.” Whitaker v. Superior Court of San 23 Francisco, 514 U.S. 208, 210 (1994) (brackets added) (citation omitted). Thus, it follows that 24 1 The Eastern District of California carries one of the largest and most heavily weighted 25 caseloads in the nation. See Office of the Clerk, United States District Court, Eastern District of California, 2024 Annual Report, “Weighted Filings,” p. 35 (2024) (“[O]ur weighted caseload far 26 exceeds the national average . . . ranking us fourth in the nation and first in the Ninth Circuit.”). 27 This problem is compounded by a shortage of jurists to review its pending matters. See generally id. (stating 2024 Biennial Judgeship Survey recommended request for four additional permanent 28 judgeships for Eastern District of California). 1 keeping this case on the Court’s docket when Plaintiff has not attempted to respond to the Court’s 2 non-prisoner in forma pauperis order – even though, presumably, he has received it2 – is not a 3 good use of the Court’s already taxed resources. Indeed, keeping this matter on the Court’s 4 docket would stall a quicker disposition of this case. Additionally, in fairness to the many other 5 litigants who currently have cases before the Court, no additional time should be spent on this 6 matter. 7 2. Risk of Prejudice to Defendants 8 Furthermore, because viable Defendants have yet to be identified and served in this case, 9 they have not put time and effort into defending against it. As a result, there will be no prejudice 10 to them if the matter is dismissed. On the contrary, dismissal will benefit any potentially viable 11 Defendants because they will not have to defend themselves against Plaintiff’s complaint. 12 3. Availability of Less Drastic Sanctions; Favored Disposition of Cases on 13 Merits 14 Finally, given that it has been over a month since the Court ordered Plaintiff to file the 15 non-prisoner in forma pauperis application, and it has had no response from Plaintiff during that 16 period, there is no less drastic option than dismissal. Although the disposition of cases on their 17 merits is preferred, this matter cannot be prosecuted if Plaintiff persists in not responding to the 18 most basic of court orders, nor can it be disposed of on its merits. 19 IV. CONCLUSION 20 For these reasons, consistent with Federal Rule of Civil Procedure 41(b) and Local Rule 21 110, and having considered the Malone factors, the undersigned recommends that this matter be 22 dismissed without prejudice for failure to prosecute and for failure to obey a court order. Plaintiff 23 will be given fourteen days to file objections to this order. 24 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court shall randomly assign a 25 District Judge to this matter. 26 IT IS FURTHER RECOMMENDED that this matter be DISMISSED without prejudice 27 2 Pursuant to Local Rule 182(f), service of documents at the record address of the party is fully 28 effective. 1 for failure to prosecute and for failure to obey a court order. 2 These findings and recommendations are submitted to the United States District Judge 3 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 4 after being served with these findings and recommendations, Plaintiff may file written objections 5 with the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 6 and Recommendations,” and it shall not exceed fifteen pages. 7 The Court will not consider exhibits attached to the objections. To the extent that Plaintiff 8 wishes to refer to any exhibit, when possible, Plaintiff must reference the exhibit in the record by 9 its CM/ECF document and page number or reference the exhibit with specificity. Any pages filed 10 in excess of the fifteen-page limit may be disregarded by the District Judge when conducting the 11 28 U.S.C. § 636(b)(l)(C) review of the findings and recommendations. Plaintiff’s failure to file 12 objections within the specified time may result in the waiver of certain rights on appeal. See 13 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014); Martinez v. Ylst, 951 F.2d 1153 (9th 14 Cir. 1991). 15 IT IS SO ORDERED. 16
17 Dated: August 4, 2025 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 18
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