(PC) Thomas v. Stringer

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 FLOYD ROBERT THOMAS, No. 1:22-cv-00174 KES GSA (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 14 B. STRINGER, ACTION FOR FAILURE TO PROSECUTE AND FAILURE TO COMPLY WITH A 15 Defendant. COURT ORDER 16 Doc. 13 17 18 Plaintiff, a state prisoner proceeding pro se, filed this civil rights action seeking relief 19 under 42 U.S.C. § 1983. The matter was referred to a United States magistrate judge pursuant to 20 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 Plaintiff paid the filing fee on March 16, 2022. See docket. On December 1, 2023, the 22 Court issued an order notifying plaintiff of the reassignment of his case. Doc. 11. The 23 reassignment order was later returned to the Court as “Undeliverable, Inactive, Return to Sender, 24 Refused, Unable to Forward.” See docket. On account of the returned mail, the magistrate judge 25 directed plaintiff to file a notice of change of address. Doc. 12. The order was returned as 26 “Undeliverable, Not as CSATF.”1 See docket. On February 23, 2024, the magistrate judge 27 1 Local Rule 182(f) provides that, absent notice of a change of address, “service of documents at 28 the prior address of the . . . pro se party shall be fully effective.” 1 issued findings and recommendations recommending dismissal for failure to prosecute and failure 2 to obey a court order. Doc. 13. The findings and recommendations were served on plaintiff and 3 contained notice that any objections were to be filed within fourteen days of service. Id. at 1, 3. 4 The findings and recommendations were returned to the Court as “Undeliverable, Refused.” See 5 docket. Plaintiff did not file any objections within the required timeframe and the time to do so 6 has passed. Subsequently, on March 14, 2024, the Court issued another case reassignment order, 7 which was returned indicating it was “Undeliverable, Deceased, Not at CSATF/SP Corcoran.” 8 Doc. 14; see docket. 9 In accordance with the provisions of 28 U.S.C. § 636(b)(1), the Court has conducted a de 10 novo review of this case. Having carefully reviewed the file, the Court finds the findings to be 11 supported by the record. Dismissal is warranted under the factors identified by the Ninth Circuit 12 in Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992) and Pagtalunan v. Galaza, 291 13 F.3d 639, 641 (9th Cir. 2002). The Court considers the following factors: “(1) the public’s 14 interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 15 risk of prejudice to defendants; (4) the availability of less drastic alternatives; and (5) the public 16 policy of favoring disposition of cases on their merits.” Ferdik, 963 F.2d at 1260–61. The first 17 factor is met as “[t]he public’s interest in expeditious resolution of litigation always favors 18 dismissal.” Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). Next, the Court’s 19 need to manage its docket also favors dismissal. See Ferdik, 963 F.2d at 1261. 20 The third factor also favors dismissal. While “[l]imited delays and the prejudice to a 21 defendant from the pendency of a lawsuit are realities of the system that have to be accepted,” 22 courts also relate the “risk of prejudice to the plaintiff’s reason for defaulting.” Yourish, 191 F.3d 23 at 991 (citations omitted). Here, plaintiff appears to be deceased, and the Court lacks personal 24 jurisdiction over the defendant and has no reasonable prospect of acquiring jurisdiction. 25 The fourth factor—the availability of less drastic sanctions—also weighs in favor of 26 dismissal because there are no feasible alternatives. “The district court need not exhaust every 27 sanction short of dismissal before finally dismissing a case but must explore possible and 28 meaningful alternatives.” Henderson, 779 F.2d at 1424. 1 Although Federal Rule of Civil Procedure 25 permits a decedent’s successor or 2 representative to file a motion for substitution within ninety days of service of a statement noting 3 the death, adherence to this procedure is not feasible in this case. To trigger the ninety-day period 4 for filing a motion for substitution, the suggestion of death must be served upon a non-party 5 successor or representative of the deceased party in accordance with Rule 4. Barlow v. Ground, 6 39 F.3d 231, 233 (9th Cir. 1994). The burden of serving successors or representatives is placed 7 on the “suggesting” party. Id. at 233. There is no “suggesting party” in this case; plaintiff’s death 8 has come to the Court’s attention through a notice on the returned envelope. See docket. Because 9 this matter has not yet been screened, the defendant has not been served or formally appeared in 10 this action and the Court lacks personal jurisdiction over the defendant. Additionally, there has 11 not been any determination as to whether the complaint alleges viable claims against the 12 defendant. See O’Neal v. Price, 531 F.3d 1146, 1151 (9th Cir. 2008) (prisoner complaint deemed 13 filed only after court identifies cognizable claims). As there is no party before the Court who 14 could identify successors or representatives of the deceased plaintiff and effectuate service of a 15 statement noting death, the fourth factor—lack of meaningful alternatives—weighs in favor of 16 dismissal.2 17 The fifth factor ordinarily weighs against dismissal, as public policy favors deciding cases 18 on the merits, but it does not outweigh the other factors. Therefore, dismissal of this action is 19 warranted. 20 /// 21 /// 22 /// 23 /// 24 ///

25 2 See Irby v. Naranjo, No. 2:21-cv-01039-KJM-JDP (PC), 2022 WL 224257, at *1 n.1 (E.D. Cal. Jan. 25, 2022), report and recommendation adopted, No. 2:21-cv-01039-KJM-JDP (PC), 2022 26 WL 584213 (E.D. Cal. Feb. 25, 2022) (dismissal without prejudice for failure to prosecute 27 appropriate where Court was notified of plaintiff’s death by party named as defendant but who had not yet been served or appeared in action). 28 1 | Accordingly, IT IS ORDERED that: 2 1. The findings and recommendations issued February 23, 2024 (ECF No. 13), are 3 | ADOPTED IN FULL; 4 2. This matter is DISMISSED without prejudice for failure to prosecute and for failure to 5 | obey acourt order. See Fed. R. Civ. P. 41(b); Local Rule 110, and 6 3. The Clerk of Court is directed to CLOSE this case. 4 8 g | SO ORDERED. _ 10 Dated: _ January 20, 2025 4h UNITED STATES DISTRICT JUDGE

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