(PC) Flores v. Cuevas

[7] 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA [10] 11 JAVIER FLORES, Case No.: 1:24-cv-01412-KES-CDB 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION WITHOUT PREJUDICE 13 v. FOR A FAILURE TO PROSECUTE 14 J. CUEVAS, 14-DAY OBJECTION PERIOD 15 Defendant. [17] I. BACKGROUND [18] Plaintiff Javier Flores originally filed this action, pro se, in the Kings County Superior [19] Court; the case was removed to this Court by Defendant J. Cuevas on November 18, 2024. (See [20] Doc. 1.) [21] On November 21, 2024, the Court issued its Order Granting Defendants’ Requested [22] Extension of Time to Respond to the Complaint As Modified, and Order Directing Plaintiff to [23] Show Cause Why Action Should Not Be Dismissed for Failure to Exhaust Administrative [24] Remedies. (Doc. 3.) As to the latter, Plaintiff was directed to show cause within 21 days. (Id. at [25] 3.) The order was served on Plaintiff that same date at his address on record with the Court: [26] “Javier Flores, AK-5319, Avenal State Prison, P.O. Box 906, Avenal CA 93204.” [27] On December 3, 2024, the United States Postal Service (USPS) returned the November 1 21, 2024, order marked “Undeliverable, Not Deliverable as Addressed, RTS.” 2 On December 5, 2024, the Court issued its Order Directing Defendant to Undertake 3 Reasonable Efforts to Locate Plaintiff and to File Status Report. (Doc. 4.) More specifically, 4 within 14 days, Defendant was to file a status report describing the efforts undertaken to locate 5 Plaintiff and the results of those efforts. (Id. at 2.) This order too was served to Plaintiff at his 6 address of record. 7 On December 13, 2024, the USPS returned the December 5, 2024, order marked 8 “Undeliverable, Out to Court, Paroled.” 9 Defendant Cuevas filed a status report on December 19, 2024. (Doc. 5.) 10 On December 27, 2024, a Clerk’s Notice issued assigning District Judge Kirk E. Sherriff 11 to this action. (Docket Entry 7.) The Clerk’s Notice was also served to Plaintiff that same date to 12 his address of record. 13 On January 22, 2025, the USPS returned the December 27, 2024, notice marked 14 “Undeliverable, Out to Court, Paroled.” 15 II. DISCUSSION 16 Defendant’s Status Report (Doc. 5) 17 In summary, Defendant Cuevas reported the following concerning efforts to locate 18 Plaintiff: (1) Defendant’s service copy of its removal documents was returned as undeliverable on 19 December 6, 2024; (2) defense counsel contacted the litigation coordinator at Avenal State Prison 20 and was informed that “Plaintiff had been paroled to the custody of the U.S. Immigration 21 Customs and Enforcement (ICE) on October 29, 2024, but the litigation coordinator had no other 22 information regarding Plaintiff’s whereabouts;” (3) defense counsel’s paralegal attempted to 23 locate Plaintiff on the ICE webpage but received no results; (4) defense counsel emailed 24 Plaintiff’s parole officer seeking information and was informed that Plaintiff was deported to 25 Mexico on November 5, 2024, but the officer had no other information concerning Plaintiff’s 26 location; (5) defense counsel reviewed Plaintiff’s prison file, found Plaintiff’s alien registration 27 number, and attempted to use the immigration court’s webpage to locate Plaintiff’s immigration 1 mentioning Mazatlan and Tijuana, Mexico, no record of a current address could be located with 2 that information; and (7) defense counsel reported that despite a California Rule of Court 3 requiring Plaintiff to update his address or contact information with the state superior court, 4 Plaintiff has not done so. Defendant stated any additional information received concerning 5 Plaintiff’s whereabouts would be promptly reported to the Court. 6 Analysis 7 Courts may dismiss lawsuits for lack of prosecution. Link v. Wabash R.R., 370 U.S. 626 , 8 629-30 (1962); Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988). In determining whether to 9 dismiss a pro se plaintiff's action for failure to prosecute, a court must consider “(1) the public's 10 interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the 11 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 12 merits; and (5) the availability of less drastic sanctions.” Carey, 856 F.2d at 1440 . 13 Here, Plaintiff was deported to Mexico nearly three months ago. Within that period, 14 Plaintiff has failed to provide the state superior court or this Court with an updated or current 15 address. Further, defense counsel’s efforts to locate Plaintiff following the Court’s December 5, 16 2024, order were thorough but unsuccessful. Given the Court’s inability to communicate with 17 Plaintiff, there are no other reasonable alternatives available to address Plaintiff’s failure to 18 prosecute this action. Thus, the first and second factors — the expeditious resolution of litigation 19 and the Court’s need to manage its docket — weigh in favor of dismissal. Carey, 856 F.2d at 20 1440. 21 The third factor also weighs fairly in favor of dismissal since a presumption of injury 22 arises from the occurrence of unreasonable delay in prosecuting an action. See Anderson v. Air 23 W., 542 F.2d 522, 524 (9th Cir. 1976). Here, Defendant has appeared in this action by way of 24 removal proceedings.1 See 28 U.S.C. § 1441 . Although nearly three months may not amount to an 25 unreasonable delay in other circumstances, this action is at a standstill. Without a current address 26 for Plaintiff, further unreasonable delays are inevitable. Thus, the third factor also weighs in favor [1] 1 of dismissal. Carey, 856 F.2d at 1440-41 . 2 The fourth factor usually weighs against dismissal because public policy favors 3 disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, 4 “this factor lends little support to a party whose responsibility it is to move a case toward 5 disposition on the merits but whose conduct impedes progress in that direction.” In re PPA Prods. 6 Liab. Litig., 460 F.3d 1217, 1228 (9th Cir. 2006). Here, Plaintiff cannot be located following 7 deportation to Mexico in November 2024. In both the state superior court2 and in this Court, 3 it is 8 Plaintiff’s obligation to keep the Court apprised of his current address. Yet following deportation, 9 Plaintiff has not updated his address with the Kings County Superior Court. Nor does this Court 10 have a current address for Plaintiff. Where Plaintiff did not receive Defendant’s removal 11 documents served November 18, 2024, Plaintiff will not be moving this case forward toward 12 disposition on the merits—Plaintiff is likely unaware that the lawsuit he filed in the state superior 13 court has been removed to this Court. But where this Court has no way to contact Plaintiff, 14 Plaintiff’s failure to comply with California Rules of Court requiring him to keep the Kings 15 County Superior Court apprised of his current address means Plaintiff will be unable to move this 16 case toward disposition on its merits. As noted above, this action is at a standstill despite efforts 17 to locate Plaintiff. Therefore, in these circumstances, the fourth factor — the public policy 18 favoring disposition of cases on their merits — also weighs in favor of dismissal. Carey, 856 F.2d 19 at 1440 . 20 Finally, the Court considers the availability of less drastic sanctions. A district court need 21 not exhaust every sanction short of dismissal before finally dismissing a case but must explore 22 possible and meaningful alternatives. See, e.g., Nevijel v. North Coast Life Insurance Co., 651 23 F.2d 671, 674 (9th Cir. 1981) (district court may dismiss an action with prejudice due to a 24 litigant’s failure to comply with Rule 8(a) if meaningful, less drastic sanctions have been 25 explored); see also Lopez-Rangel v. Copenhaver, No. 14-cv-1175-DLB PC, 2016 WL 8730721 , [26] 27 2 See Cal. R. Ct. 2.200 (Service and filing of notice of change of address or other contact information). [3] 1 at *1, n.1 (E.D. Cal. Jan. 29, 2016) (noting the action “was [previously] dismissed without 2 prejudice on December 9, 2015, after Plaintiff was released and deported, but failed to keep the 3 Court apprised of his current address”). The Court has considered possible and meaningful 4 alternatives in this case. When the Court’s orders were returned by the USPS marked 5 undeliverable, the Court directed Defendant to undertake reasonable efforts to locate Plaintiff. 6 Defendant did so without success. Given Plaintiff’s deportation to Mexico and the Court’s 7 inability to locate and/or contact Plaintiff, less drastic sanctions are simply unavailable. Notably 8 too, the dismissal recommended herein is without prejudice, allowing Plaintiff the potential of re9 filing his lawsuit in this Court.4 10 Additionally, the Court notes dismissal for a failure to prosecute where a plaintiff has been 11 deported is not exceptional. See, e.g., Clarke v. United States, No. 19-CV-00328V(F), 2021 12 431630, at *4 (W.D.N.Y. Jan. 5, 2021) (recommending motion to dismiss and action be 13 dismissed without prejudice for plaintiff’s failure to prosecute following deportation), adopted [14] 2021 WL 428651 (W.D.N.Y. Feb. 8, 2021); Bueno Diaz v. Mercurio, No. 19 Civ. 1319 (AT), [15] 2020 WL 3893271 , at *3 (S.D.N.Y. July 9, 2020) (granting motion to dismiss for failure to 16 prosecute and stating, “In light of Plaintiff’s circumstances—including his pro se status, 17 frequently changing custody, and deportation—dismissal without prejudice is warranted”); 18 Douglas v. Salotti, No. 15-CV-636-A, 2020 WL 2525767 , at *1 (W.D.N.Y. May 18, 2020) 19 (dismissing case without prejudice for P’s failure to prosecute following deportation [after issuing 20 OSC re ability to prosecute after deportation]); Abreu v. Weston, No. 9:18-CV-0186 21 (MAD/ATB), 2020 WL 524777 , at *3 (N.D.N.Y. Feb. 3, 2020) (dismissing action for plaintiff’s 22 failure to prosecute and to comply with court orders where plaintiff was deported, mail was 23 returned to the court undeliverable, plaintiff failed to keep address current, and plaintiff’s 24 whereabouts were unknown); Ibarra v. Henderson, No. 14-cv-0395-MJR-SCW, 2015 WL 25 5162276, at *1 (S.D. Ill. Sept. 1, 2015) (adopting recommendation to grant motion to dismiss for 26 want of prosecution following plaintiff’s release from prison and deportation); Roach v. Sobal, [4] 1 | No. 92 CIV 7355(TPG), 81971, 1999 WL 108612 , at *1 (S.D.N.Y. Mar. 2, 1999) (dismissing 2 | complaint for failure to prosecute and noting, “Since his deportation, plaintiff has not contacted 3 | either the Court or defendants in any regard and his whereabouts remain unknown, preventing 4 | either the Court or defendants from contacting him’’). 5 I. CONCLUSION AND RECOMMENDATION 6 Based upon the foregoing, the undersigned HEREBY RECOMMENDS this action be 7 | dismissed without prejudice for a failure to prosecute. 8 These Findings and Recommendations will be submitted to the United States District 9 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within 14 days 10 | after being served with a copy of these Findings and Recommendations, a party may file written 11 | objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to 12 | Magistrate Judge’s Findings and Recommendations” and shall not exceed 15 pages without 13 || leave of Court and good cause shown. The Court will not consider exhibits attached to the 14 | Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference the 15 | exhibit in the record by its CM/ECF document and page number, when possible, or otherwise 16 | reference the exhibit with specificity. Any pages filed in excess of the 15-page limitation may be 17 | disregarded by the District Judge when reviewing these Findings and Recommendations under 28 18 | U.S.C. § 636(b)()(C). A party’s failure to file any objections within the specified time may result 19 | in the waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 20 | □□ □□ SO ORDERED. | Dated: _ January 31, 2025 | Wr bo 22 UNITED STATES MAGISTRATE JUDGE