1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 FRANCISCO RODRIGUEZ, JR., No. 1:20-cv-00167-HBK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT THIS CASE BE DISMISSED WITHOUT 13 v. PREJUDICE1
14 CALIFORNIA CORRECTIONAL OBJECTIONS DUE WITHIN THIRTY DAYS INSTITUTION, et al., 15 ORDER DIRECTING CLERK TO ASSIGN A Defendants. DISTRICT JUDGE 16
17 This matter comes before the court upon initial review of the file, which was reassigned to 18 the undersigned on November 17, 2020. (Doc. No.9). As more fully set forth below, the 19 undersigned recommends the court dismiss this case without prejudice due to plaintiff’s failure to 20 comply with a court order, update his address and prosecute this action. 21 I. FACTS AND BACKGROUND 22 Plaintiff Francisco Rodriguez, Jr. is a state prisoner proceeding pro se and in forma pauperis 23 on his civil rights complaint filed under 42 U.S.C. § 1983. (Doc. Nos. 1, 7). On June 26, 2020, the 24 court issued a screening order under 28 U.S.C. § 1915A and determined the complaint failed “to 25 state a cognizable claim against any defendant.” (Doc. No. 8 at 4). The court ordered plaintiff to 26 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Ca. 2019). 1 file an amended complaint within sixty (60) days and warned him that if he failed to comply with 2 the court’s order the case would be dismissed. (Id. at 5, ¶¶ 1-12). The court’s order was apparently 3 delivered to plaintiff because it was not returned as undeliverable. As of the date on these findings 4 and recommendations, plaintiff has failed to file an amended complaint or seek an extension of 5 time to comply with the court’s order. (See docket). On November 30, 2020, the court’s order 6 reassigning this case to the undersigned was retuned as “Undeliverable, Inactive.” (Id.). Plaintiff’s 7 notice of change of address was due by February 8, 2021. 8 II. APPLICABLE LAW 9 This court’s Local Rules require litigants to keep the court apprised of their current 10 address and permits dismissal when the litigant fails to comply. Specifically: 11 “[a] party appearing in propria persona shall keep the Court and opposing parties advised as to his or her current address. If mail 12 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 13 and opposing parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without prejudice 14 for failure to prosecute.” 15 E.D. Cal. Loc. R. 183(b) (2019); see also Local Rule 182(f) (all aprties are “under a continuing 16 duty” to notify the clerk of “any change of address.” Precedent supports a dismissal of a case 17 when a litigant fails to keep the court appraised on his address. Carey v. King, 856 F.2d 1439 18 (9th Cir. 1988) (affirming lower court and finding no abuse of discretion when district court 19 dismissed case without prejudice after pro se plaintiff did not comply with local rule requiring 20 pro se plaintiffs keep court apprised of addresses at all times); Hanley v. Opinski, Case No. 1:16- 21 cv-391-DAD-SAB, 2018 WL 3388510 (E.D. Ca. July 10, 2018) (dismissing action for failure to 22 prosecute and failure to provide court with current address). 23 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action 24 when a litigant fails to prosecute an action or fails to comply with other Rules or with a court 25 order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 26 (9th Cir. 2019) (citations omitted); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 27 683, 689 (9th Cir. 2005) (“[T]he consensus among our sister circuits, with which we agree, is that 28 courts may dismiss under Rule 41(b) sua sponte, at least under certain circumstances.”). Local 1 Rule 110 similarly permits the court to impose sanctions on a party who fails to comply with the 2 court’s Rules or any order of court. 3 Involuntary dismissal is a harsh penalty, but it “is incumbent upon the Court to manage its 4 docket without being subject to routine noncompliance of litigants.” Pagtalunan v. Galaza, 291 5 F.3d 639, 642 (9th Cir. 2002). Before dismissing an action under Fed. R. Civ. P. 41, the court 6 must consider: (1) the public interest in expeditious resolution of litigation; (2) the court’s need to 7 manage a docket; (3) the risk of prejudice to defendant; (4) public policy favoring disposition on 8 the merits; and (5) the availability of less drastic sanctions. See Applied Underwriters, 913 F.3d 9 at 889 (noting that these five factors “must” be analyzed before a Rule 41 involuntary dismissal) 10 (emphasis added); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (reviewing 11 five factors and independently reviewing the record because district court did not make finding as 12 to each factor); but see Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000) (listing 13 the same five factors, but noting the court need not make explicit findings as to each) (emphasis 14 added); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (affirming dismissal of pro se § 15 1983 action when plaintiff did not amend caption to remove “et al” as the court directed and 16 reiterating that an explicit finding of each factor is not required by the district court). 17 III. ANALYSIS 18 The undersigned considers each of the above-stated factors and concludes dismissing this 19 case is warranted. The expeditious resolution of litigation is deemed to be in the public interest, 20 satisfying the first factor. Yourish v. California Amplifier, 191 F.3d 983, 990–91 (9th Cir. 1999). 21 Turning to the second factor, the court’s need to efficiently manage its docket cannot be 22 overstated. This court has “one of the heaviest caseloads in the nation,” and due to unfilled 23 judicial vacancies, which is further exacerbated by the Covid-19 pandemic, operates under a 24 declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 25 Emergency in the Eastern District of California. The court’s time is better spent on its other 26 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 EASTERN DISTRICT OF CALIFORNIA 10 11 FRANCISCO RODRIGUEZ, JR., No. 1:20-cv-00167-HBK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT THIS CASE BE DISMISSED WITHOUT 13 v. PREJUDICE1
14 CALIFORNIA CORRECTIONAL OBJECTIONS DUE WITHIN THIRTY DAYS INSTITUTION, et al., 15 ORDER DIRECTING CLERK TO ASSIGN A Defendants. DISTRICT JUDGE 16
17 This matter comes before the court upon initial review of the file, which was reassigned to 18 the undersigned on November 17, 2020. (Doc. No.9). As more fully set forth below, the 19 undersigned recommends the court dismiss this case without prejudice due to plaintiff’s failure to 20 comply with a court order, update his address and prosecute this action. 21 I. FACTS AND BACKGROUND 22 Plaintiff Francisco Rodriguez, Jr. is a state prisoner proceeding pro se and in forma pauperis 23 on his civil rights complaint filed under 42 U.S.C. § 1983. (Doc. Nos. 1, 7). On June 26, 2020, the 24 court issued a screening order under 28 U.S.C. § 1915A and determined the complaint failed “to 25 state a cognizable claim against any defendant.” (Doc. No. 8 at 4). The court ordered plaintiff to 26 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Ca. 2019). 1 file an amended complaint within sixty (60) days and warned him that if he failed to comply with 2 the court’s order the case would be dismissed. (Id. at 5, ¶¶ 1-12). The court’s order was apparently 3 delivered to plaintiff because it was not returned as undeliverable. As of the date on these findings 4 and recommendations, plaintiff has failed to file an amended complaint or seek an extension of 5 time to comply with the court’s order. (See docket). On November 30, 2020, the court’s order 6 reassigning this case to the undersigned was retuned as “Undeliverable, Inactive.” (Id.). Plaintiff’s 7 notice of change of address was due by February 8, 2021. 8 II. APPLICABLE LAW 9 This court’s Local Rules require litigants to keep the court apprised of their current 10 address and permits dismissal when the litigant fails to comply. Specifically: 11 “[a] party appearing in propria persona shall keep the Court and opposing parties advised as to his or her current address. If mail 12 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 13 and opposing parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without prejudice 14 for failure to prosecute.” 15 E.D. Cal. Loc. R. 183(b) (2019); see also Local Rule 182(f) (all aprties are “under a continuing 16 duty” to notify the clerk of “any change of address.” Precedent supports a dismissal of a case 17 when a litigant fails to keep the court appraised on his address. Carey v. King, 856 F.2d 1439 18 (9th Cir. 1988) (affirming lower court and finding no abuse of discretion when district court 19 dismissed case without prejudice after pro se plaintiff did not comply with local rule requiring 20 pro se plaintiffs keep court apprised of addresses at all times); Hanley v. Opinski, Case No. 1:16- 21 cv-391-DAD-SAB, 2018 WL 3388510 (E.D. Ca. July 10, 2018) (dismissing action for failure to 22 prosecute and failure to provide court with current address). 23 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action 24 when a litigant fails to prosecute an action or fails to comply with other Rules or with a court 25 order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 26 (9th Cir. 2019) (citations omitted); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 27 683, 689 (9th Cir. 2005) (“[T]he consensus among our sister circuits, with which we agree, is that 28 courts may dismiss under Rule 41(b) sua sponte, at least under certain circumstances.”). Local 1 Rule 110 similarly permits the court to impose sanctions on a party who fails to comply with the 2 court’s Rules or any order of court. 3 Involuntary dismissal is a harsh penalty, but it “is incumbent upon the Court to manage its 4 docket without being subject to routine noncompliance of litigants.” Pagtalunan v. Galaza, 291 5 F.3d 639, 642 (9th Cir. 2002). Before dismissing an action under Fed. R. Civ. P. 41, the court 6 must consider: (1) the public interest in expeditious resolution of litigation; (2) the court’s need to 7 manage a docket; (3) the risk of prejudice to defendant; (4) public policy favoring disposition on 8 the merits; and (5) the availability of less drastic sanctions. See Applied Underwriters, 913 F.3d 9 at 889 (noting that these five factors “must” be analyzed before a Rule 41 involuntary dismissal) 10 (emphasis added); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (reviewing 11 five factors and independently reviewing the record because district court did not make finding as 12 to each factor); but see Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000) (listing 13 the same five factors, but noting the court need not make explicit findings as to each) (emphasis 14 added); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (affirming dismissal of pro se § 15 1983 action when plaintiff did not amend caption to remove “et al” as the court directed and 16 reiterating that an explicit finding of each factor is not required by the district court). 17 III. ANALYSIS 18 The undersigned considers each of the above-stated factors and concludes dismissing this 19 case is warranted. The expeditious resolution of litigation is deemed to be in the public interest, 20 satisfying the first factor. Yourish v. California Amplifier, 191 F.3d 983, 990–91 (9th Cir. 1999). 21 Turning to the second factor, the court’s need to efficiently manage its docket cannot be 22 overstated. This court has “one of the heaviest caseloads in the nation,” and due to unfilled 23 judicial vacancies, which is further exacerbated by the Covid-19 pandemic, operates under a 24 declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 25 Emergency in the Eastern District of California. The court’s time is better spent on its other 26 matters than needlessly consumed managing a case with a recalcitrant litigant. Indeed, “trial 27 courts do not have time to waste on multiple failures by aspiring litigants to follow the rules and 28 requirements of our courts.” Pagtalunan, 291 F.3d at 644 (Trott, J., concurring in affirmance of 1 district court’s involuntary dismissal with prejudice of habeas petition where petitioner failed to 2 timely respond to court order and noting “the weight of the docket-managing factor depends upon 3 the size and load of the docket, and those in the best position to know what that is are our 4 beleaguered trial judges.”). Delays have the inevitable and inherent risk that evidence will 5 become stale or witnesses' memories will fade or be unavailable and can prejudice a defendant, 6 thereby satisfying the third factor. See Sibron v. New York, 392 U.S. 40, 57 (1968). Attempting a 7 less drastic action, such as issuing an order to show cause, would be futile because plaintiff has 8 failed to update his address and thus any correspondence sent to him will be returned. 9 Additionally, the instant dismissal is a dismissal without prejudice, which is a lesser sanction than 10 a dismissal with prejudice, thereby addressing the fifth factor. 11 Plaintiff failed to comply with the court’s June 26, 2020 order to amend his complaint, 12 despite being cautioned that his failure to do so would warrant dismissal. (Doc. No. 8). And 13 contrary to Local Rule 183(b), more than 63 days have passed since mail was returned as 14 undeliverable and plaintiff has not updated his mailing address or otherwise contacted the court. 15 Considering these factors and those set forth supra, as well as binding case law, the undersigned 16 recommends dismissal, without prejudice, under Fed. R. Civ. P. 41(b) and Local Rules 110 and 17 183(b). 18 Accordingly, it is ORDERED: 19 The Clerk shall assign a District Judge to this case. 20 It is further RECOMMENDED: 21 This case be dismissed without prejudice. 22 NOTICE TO PARTIES 23 These findings and recommendations will be submitted to the United States district judge 24 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) 25 days after being served with these findings and recommendations, a party may file written 26 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 27 Findings and Recommendations.” Parties are advised that failure to file objections within the 28 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 1 | 838-39 (th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (th Cir. 1991). 2 3 | IT IS SO ORDERED. Dated: __April 30, 2021 Moa WN. fered Yack 5 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 9 10
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