Eugene Edward Moore v. John McMahon

[4] 5 JS-6 [7] 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION [11] 12 EUGENE EDWARD MOORE, ) No. ED CV 18-333-SVW (PLA) ) 13 Plaintiff, ) ORDER DISMISSING ACTION WITHOUT ) PREJUDICE FOR FAILURE TO 14 v. ) PROSECUTE AND FAILURE TO NOTIFY ) THE COURT OF CHANGE OF ADDRESS 15 B. GINN, et al., ) ) 16 Defendants. ) ) [17] 18 I. 19 BACKGROUND 20 On February 14, 2018, plaintiff, proceeding pro se, filed a civil rights Complaint pursuant 21 to 42 U.S.C. § 1983 in which he alleged that, while he was incarcerated at the San Bernardino 22 County Sheriff Department’s West Valley Detention Center, his constitutional rights were violated 23 when he was denied a diet that complied with certain medical and religious restrictions. (ECF No. 24 1). After plaintiff was given several opportunities to amend his Complaint to correct various 25 deficiencies, he filed the operative Third Amended Complaint (“TAC”) on November 15, 2019. 26 (See ECF Nos. 31, 61, 62). The TAC named as defendants Nurse B. Ginn in her individual 27 capacity and the San Bernardino County Sheriff’s Department (“SBCSD”). (ECF No. 62 at 1-2). [28] 1 After screening the TAC pursuant to 28 U.S.C. § 1915 (e)(2),1 the Magistrate Judge issued 2 a Report and Recommendation (“R&R”) on December 16, 2019, recommending that the TAC be 3 dismissed without leave to amend and with prejudice for failure to state a claim upon which relief 4 can be granted as to defendants Nurse Ginn and the SBCSD. (ECF No. 65). 5 The R&R was mailed to plaintiff’s address of record at the California Correctional Center 6 in Susanville, California, but was returned to the Court as undeliverable, and with additional 7 notations that plaintiff was “Discharged” and “not here.” (ECF Nos. 66, 67). Subsequently, 8 although plaintiff had not informed the Court that he had a new address, the Magistrate Judge in 9 an abundance of caution issued an order on January 9, 2020, directing the Court clerk to mail the 10 R&R to plaintiff at the address set forth in the caption of the TAC, which was different than his 11 address of record: “Antelope Camp #25, P.O. Box 270160, Susanville, CA 96127.” (ECF No. 68). 12 The Magistrate Judge noted that the California Department of Corrections and Rehabilitation’s 13 inmate locator website reflected that plaintiff was no longer incarcerated, and reminded plaintiff 14 that during the pendency of this action, he was required to notify the Court of any address change, 15 and that the failure to do so may result in the dismissal of this action for failure to prosecute.2 16 (Id.). The R&R sent to the Antelope Camp address was returned to the Court as undeliverable, 17 with a notation that plaintiff was “not @ CCC.” (ECF Nos. 70-71). The R&R was then sent again 18 to plaintiff’s address of record, and again was returned to the Court as undeliverable with the 19 notation that plaintiff was “not @ CCC.” (ECF No. 72). 20 On June 9, 2020, the Court issued an Order Accepting in Part Report and 21 Recommendation by Magistrate Judge Abrams. (ECF No. 75). In the Order Accepting, the Court 22 dismissed with prejudice the claims against the SBCSD, but found that plaintiff adequately alleged 23 constitutional violations against defendant Nurse Ginn based on inadequate medical care. The [25] 1 Plaintiff was granted leave to proceed in this action without prepayment of the filing fee. 26 (ECF No. 4). 27 2 Plaintiff has been repeatedly advised of the requirement to notify the Court immediately of any address change, and that the failure to do so may result in the dismissal of [28] 1 Court additionally noted that in recent months, mail sent to plaintiff by the Court had been returned 2 as undelivered, and ordered defendant’s counsel to make inquiries regarding plaintiff’s whereabouts, 3 and to file a status report as to this issue. (Id. at 5). 4 On June 18, 2020, defendant filed the requested status report, stating that, according to 5 information provided by a California parole agent, plaintiff was released from the San Bernardino 6 County Jail on January 14, 2020, with instructions to report to the San Bernardino Parole Office. 7 Plaintiff failed to report as instructed, and has had no contact with the Parole Office as of the date the 8 status report was filed. Although the Parole Office was attempting to find plaintiff, his whereabouts 9 were unknown at that time. (ECF No. 77). 10 Also on June 18, 2020, defendant Nurse Ginn filed a Motion to Dismiss for Plaintiff’s Failure 11 to Prosecute, arguing that the TAC should be dismissed because plaintiff had abandoned his case 12 to defendant’s prejudice. (ECF No. 78). On June 22, 2020, the Magistrate Judge issued an order 13 setting July 13, 2020, as the deadline for plaintiff to file an opposition. The hearing on the motion was 14 also ordered off calendar. (ECF No. 79). On July 7, 2020, a copy of the Magistrate Judge’s order 15 (ECF No. 79) that was mailed to plaintiff at his address of record was returned to the Court with the 16 notation that plaintiff was “Out of Custody.” (ECF No. 80). 17 On July 13, 2020, a copy of the June 9, 2020, Order Accepting that was mailed to plaintiff at 18 his address of record was returned to the Court with the notations that plaintiff was “paroled” and “Not 19 @ CCC.” (ECF No. 81). 20 To date, plaintiff has not filed an opposition to the pending Motion to Dismiss, and the deadline 21 for doing so has passed. [22] 23 II. 24 DISCUSSION 25 As set forth below, the Court finds that dismissal of the Complaint is appropriate based on 26 plaintiff’s failure to notify the Court of his change of address, and for failure to prosecute. 27 / 28 / 1 A. FAILURE TO INFORM THE COURT OF ADDRESS CHANGE 2 Plaintiff’s failure to inform the Court of his current address in and of itself warrants dismissal. 3 Local Rule 41-6 states: 4 A party proceeding pro se shall keep the Court and opposing parties apprised of such party’s current address and telephone number, if any, and e-mail address, if any. If 5 mail directed by the Clerk to a pro se plaintiff’s address of record is returned undelivered by the Postal Service, and if, within fifteen (15) days of the service date, 6 such plaintiff fails to notify, in writing, the Court and opposing parties of said plaintiff’s current address, the Court may dismiss the action with or without prejudice for want of 7 prosecution. 8 Since at least the time that the Magistrate Judge issued the R&R on December 16, 2019, 9 plaintiff has not apprised the Court of a new address. Indeed, he has not had any contact with the 10 Court since he filed the TAC on November 15, 2019. Accordingly, this action is subject to dismissal 11 for failure to comply with Local Rule 41-6. 12 B. FAILURE TO PROSECUTE 13 It is well established that a district court has authority to dismiss a plaintiff’s action because of 14 his or her failure to prosecute. See Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626 , 15 629-30, 82 S.Ct. 1386 , 8 L.Ed.2d 734 (1962) (holding that a court’s authority to dismiss for lack of 16 prosecution is necessary to prevent undue delays in the disposition of pending cases and to avoid 17 congestion in the calendars of the district courts). 18 In this case, plaintiff’s failure to keep the Court apprised of his current address renders this 19 case indistinguishable from Carey v. King, 856 F.2d 1438 (9th Cir. 1988). There, in affirming the 20 district court’s dismissal of an action for failure to prosecute based on the fact that the court’s mail to 21 plaintiff was returned to the court as undeliverable, the Ninth Circuit observed that “[i]t would be 22 absurd to require the district court to hold a case in abeyance indefinitely just because it is unable, 23 through the plaintiff’s own fault, to contact the plaintiff to determine if his reasons for not prosecuting 24 his lawsuit are reasonable or not.” Carey, 856 F.2d at 1441. 25 The Carey court cited the following factors as relevant to a district court’s determination of 26 whether dismissal of a pro se plaintiff’s action is warranted for failure to prosecute: “(1) the public’s 27 interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of [28] 1 prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits, and (5) 2 the availability of less drastic sanctions.” Carey, 856 F.2d at 1440. 3 The first two factors -- the public’s interest in expeditious resolution of litigation and the Court’s 4 need to manage its docket -- weigh in favor of dismissal. Plaintiff’s failure to keep the Court informed 5 of his current address, or to otherwise communicate with the Court at any time after filing the TAC in 6 November 2019, significantly hinders the Court’s ability to move this case toward disposition and 7 indicates that plaintiff does not intend to litigate this action diligently. 8 The third factor -- prejudice to defendant -- also weighs in favor of dismissal. A rebuttable 9 presumption of prejudice to a defendant arises when a plaintiff unreasonably delays prosecution of 10 an action. In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994). Nothing suggests that such a 11 presumption is unwarranted in this case. 12 The fourth factor -- public policy in favor of deciding cases on their merits -- weighs against 13 dismissal. It is plaintiff’s responsibility, however, to move his case toward a disposition at a 14 reasonable pace and to avoid dilatory and evasive tactics. See Morris v. Morgan Stanley Co., 942 15 F.2d 648, 652 (9th Cir. 1991). By failing to keep the Court informed of his current address, or to 16 otherwise communicate with the Court since filing the TAC in November 2019, plaintiff has not 17 discharged this responsibility. In these circumstances, the public policy favoring resolution of disputes 18 on the merits does not outweigh plaintiff’s failure to comply with court orders. 19 Finally, mail sent by the Court to plaintiff since December 2019 has been returned as 20 undeliverable, and there is indication on the returned envelopes that plaintiff has been released on 21 parole. Moreover, defendant’s status report states that plaintiff was released on parole but that he 22 failed to report to the Parole Office, and his whereabouts are unknown. (ECF No. 77). Plaintiff has 23 not informed the Court of his current address and has not otherwise communicated with the Court 24 since November 2019. As in Carey, the Court is unable to contact plaintiff “to threaten him with some 25 lesser sanction.” Carey, 856 F.2d at 1441 (noting that an order to show cause why dismissal was not 26 warranted or an order imposing sanctions “would only find itself taking a round trip tour through the 27 United States Mail”). As discussed above, it is plaintiff’s burden to keep the Court apprised of any [28] 1 || changes in his mailing address to enable the Court to communicate with him when necessary. Id. Plaintiff has not met this burden. Thus, the fifth factor weighs in favor of dismissal. 3 Taking all of the above factors into account, dismissal for failure to prosecute is appropriate. 4|| Such a dismissal, however, should not be entered unless plaintiff has been notified that dismissal is 5|| imminent. See W. Coast Theater Corp. v. City of Portland, 897 F.2d 1519 , 1523 (9th Cir. 1990). In 6| this case, “the local rule itself provided notice” that the action was subject to dismissal for failure to keep the Court informed of any address change. Carey, 856 F.2d at 1441; see also Local Rule 41-6. Moreover, after initiating this action on February 14, 2018, plaintiff was informed in the Magistrate 9] Judge’s February 22, 2018, Order Re: Civil Rights Case about the necessity to provide notice of any address change, and that any failure to comply with a Court order where plaintiff did not receive the order due to failure to inform the Court of plaintiff's current address may result in dismissal of the action for failure to prosecute. (ECF No. 5 at 2). Subsequently, on March 8, 2018, the Magistrate 13 | Judge issued an Order Re: Plaintiffs Mailing Address and Service of Complaint, in which plaintiff was ordered to provide the Court his current mailing address, and was warned that the failure to do so 15 || may result in dismissal for failure to prosecute. (ECF No. 7 at 1). Accordingly, the Court finds that plaintiff has been adequately notified regarding the risk of dismissal for failure to prosecute. [17] 18 Hil. 19 CONCLUSION 20 IT |S THEREFORE ORDERED that this action is dismissed without prejudice for failure to prosecute, and failure to apprise the Court of a change of address in violation of Local Rule 416. 23 ka ote) Pia 24| DATED: _ August26 _, 2020 ([Gn/ CCE, HONORABLE STEPHEN V. WILSON 25 UNITED STATES DISTRICT JUDGE [28] Rr