Timothy Edward Lyles v. Alex Villanueva

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 TIMOTHY EDWARD LYLES, ) Case No. CV 19-4539-CAS (JPR) 11 ) Plaintiff, ) 12 ) ORDER DISMISSING ACTION WITH v. ) PREJUDICE FOR FAILURE TO 13 ) PROSECUTE AND FAILURE TO STATE A ALEX VILLANUEVA, ) CLAIM 14 ) Defendant. ) 15 ) 16 On May 24, 2019, Plaintiff filed this civil-rights action 17 pro se. The allegations of the Complaint are substantially 18 similar to those of a lawsuit Plaintiff filed in 2014, which was 19 dismissed without prejudice after he failed to prosecute it. See 20 Order Dismissing Action, Lyles v. Scott, No. CV 14-4519-CAS (JPR) 21 (C.D. Cal. Dec. 17, 2014), ECF No. 21. On August 29, 2019, the 22 Magistrate Judge dismissed this Complaint for failure to state a 23 claim but with leave to amend, warning Plaintiff in bold letters 24 that if he failed to file a timely amended complaint his lawsuit 25 would “likely” be dismissed for the reasons stated in the order 26 and for failure to prosecute. The dismissal order was returned 27 as undeliverable, however, with the notation “Return to Sender.” 28 The Court re-served the order with a slight adjustment to 1 1 Plaintiff’s address, and it was again returned as undeliverable 2 with the “Return to Sender” notation. Plaintiff has not filed a 3 change of address since mid-July, well before the dismissal order 4 was filed. 5 Local Rule 41-6 provides that 6 [a] party proceeding pro se shall keep the Court . . . 7 apprised of such party’s current address . . . . If 8 mail directed by the Clerk to a pro se plaintiff’s 9 address of record is returned undelivered by the Postal 10 Service, and if, within fifteen (15) days of the 11 service date, such plaintiff fails to notify, in 12 writing, the Court and opposing parties of said 13 plaintiff’s current address, the Court may dismiss the 14 action with or without prejudice for want of 15 prosecution. 16 Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988) (per 17 curiam), examined when it is appropriate to dismiss a plaintiff’s 18 lawsuit for failure to prosecute. See also Link v. Wabash R.R., 19 370 U.S. 626, 629–30 (1962) (“The power to invoke [dismissal] is 20 necessary in order to prevent undue delays in the disposition of 21 pending cases and to avoid congestion in the calendars of the 22 District Courts.”). 23 In deciding whether to dismiss a lawsuit for failure to 24 prosecute, a court must consider “(1) the public’s interest in 25 expeditious resolution of litigation; (2) the court’s need to 26 manage its docket; (3) the risk of prejudice to the defendants; 27 (4) the public policy favoring disposition of cases on their 28 merits[;] and (5) the availability of less drastic sanctions.” 2 1 Carey, 856 F.2d at 1440 (citation omitted). Unreasonable delay 2 creates a rebuttable presumption of prejudice to the defendant 3 that can be overcome only with an affirmative showing of just 4 cause by the plaintiff. In re Eisen, 31 F.3d 1447, 1452-53 (9th 5 Cir. 1994). When a plaintiff fails to timely submit an amended 6 complaint, dismissal may be with prejudice. Yourish v. Cal. 7 Amplifier, 191 F.3d 983, 989-90 (9th Cir. 1999). 8 Here, the first, second, third, and fifth Carey factors 9 militate in favor of dismissal. In particular, by failing to 10 file a change of address, Plaintiff has rendered the Court unable 11 to communicate with him. He has not rebutted the presumption of 12 prejudice to Defendant, and no less drastic sanction is 13 available. See Scott v. Belmares, 328 F. App’x 538, 539 (9th 14 Cir. 2009) (affirming dismissal of civil-rights lawsuit in part 15 because pro se plaintiff failed to keep court apprised of change 16 of address under Local Rule 41-6). Although the fourth Carey 17 factor weighs against dismissal — as it always does — together 18 the other factors outweigh the public’s interest in disposing of 19 the case on its merits. And because Plaintiff earlier failed to 20 prosecute an almost identical lawsuit, dismissal should be with 21 prejudice. 22 23 24 25 26 27 28 3 1 It therefore is ORDERED that this action is dismissed with prejudice for failure to prosecute and for the reasons stated in 3 | the Magistrate Judge’s August 29 dismissal order, which the Court read, agrees with, and accepts. 6 DATED: October 16, 2019 U.S. DISTRICT JUDGE 8 9 Presented by: 10 11) foe Prelate Jean P. Rosenbluth 12 }U.S. Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28