Scott Robert Moore v. Long Beach Police Dept

Opinion

Case 2:22-cv-01637-AB-JPR Document 8 Filed 05/02/22 Page 1 of 4 Page ID #:18

1 2 3 4 5 6 7 10 SCOTT ROBERT MOORE, ) Case No. CV 22-1637-AB (JPR) 11 ) Plaintiff, ) 12 ) ORDER DISMISSING ACTION WITHOUT v. ) PREJUDICE FOR FAILURE TO 13 ) PROSECUTE LONG BEACH POLICE DEP’T et ) 14 al., ) ) 15 Defendants. ) ) 16 On March 10, 2022, Plaintiff filed this civil-rights action 17 pro se, using an address at a Veteran’s Affairs medical center. 18 Shortly thereafter, mail the Court sent Plaintiff at his address 19 of record was returned as undeliverable, with notations that he 20 had been “discharged” and had “moved.” The first such piece of 21 mail was received back by the Court on March 25, 2022. Plaintiff 22 has not filed a change of address or otherwise communicated with 23 the Court since filing his Complaint. 24 Local Rule 41-6 provides that 25 [a] party proceeding pro se must keep the Court . . . 26 informed of the party’s current address . . . . If a 27 Court order or other mail served on a pro se plaintiff at 28 1 Case 2:22-cv-01637-AB-JPR Document 8 Filed 05/02/22 Page 2 of 4 Page ID #:19

1 his address of record is returned by the Postal Service 2 as undeliverable and the pro se party has not filed a 3 notice of change of address within 14 days of the service 4 date of the order or other Court document, the Court may 5 dismiss the action with or without prejudice for failure 6 to prosecute. 7 Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988) (per 8 curiam), examined when it is appropriate to dismiss a plaintiff’s 9 lawsuit for failure to prosecute. See also Link v. Wabash R.R., 10 370 U.S. 626, 629–30 (1962) (“The power to invoke [dismissal] is 11 necessary in order to prevent undue delays in the disposition of 12 pending cases and to avoid congestion in the calendars of the 13 District Courts.”). 14 In deciding whether to dismiss a lawsuit for failure to 15 prosecute, a court must consider “(1) the public’s interest in 16 expeditious resolution of litigation; (2) the court’s need to 17 manage its docket; (3) the risk of prejudice to the defendants; 18 (4) the public policy favoring disposition of cases on their 19 merits[;] and (5) the availability of less drastic sanctions.” 20 Carey, 856 F.2d at 1440 (citation omitted). Unreasonable delay 21 creates a rebuttable presumption of prejudice to the defendant 22 that can be overcome only with an affirmative showing of just 23 cause by the plaintiff. In re Eisen, 31 F.3d 1447, 1452-53 (9th 24 Cir. 1994). 25 Here, the first, second, third, and fifth Carey factors 26 militate in favor of dismissal. In particular, by failing to 27 file a change of address, Plaintiff has rendered the Court unable 28 to communicate with him. He has not rebutted the presumption of 2 Case 2:22-cv-01637-AB-JPR Document 8 Filed 05/02/22 Page 3of4 Page ID #:20

1 || prejudice to Defendants, and no less drastic sanction is 2 || available. See Scott v. Belmares, 328 F. App’x 538, 539 (9th 3} Cir. 2009) (affirming dismissal of civil-rights lawsuit in part 4 || because pro se plaintiff failed to keep court apprised of change 5} of address under Local Rule 41-6). Although the fourth Carey 6 || factor weighs against dismissal — as it always does — together other factors outweigh the public’s interest in disposing of 8 || the case on its merits. 9 It therefore is ORDERED that this action is dismissed 10 |} without prejudice for failure to prosecute. 12 13 (ch DATED: May 2,2022 14 ANDRE BIROTTE JR. U.S. DISTRICT JUDGE 15 16 Presented by: 17 Is fo brenhste- Jean P. Rosenbluth 19 |} U.S. Magistrate Judge 20 21 22 23 24 25 26 27 28

Case 2:22-cv-01637-AB-JPR Document 8 Filed 05/02/22 Page 4 of 4 Page ID #:21

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