(PC)Jerry Antivone Castle v. Unknown

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 JERRY ANTIVONE CASTLE, Case No. 1:22-cv-00169-HBK (PC) 12 Plaintiff, ORDER TO ASSIGN A DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATIONS TO DISMISS CASE WITHOUT PREJUDICE FOR 14 UNKNOWN DEFENDANT, FAILURE TO PROSECUTE1 15 Defendant. FOURTEEN-DAY OBJECTION PERIOD [17] 18 This matter comes before the Court upon periodic review. As more fully set forth below, 19 the undersigned recommends the district court dismiss this case without prejudice due to 20 Plaintiff’s failure to prosecute this action. Specifically, Plaintiff did not follow or respond to the 21 Court’s orders and failed to keep the Court appraised of a current address. 22 I. FACTS AND BACKGROUND 23 Plaintiff Jerry Antivone Castle, a state prisoner, commenced this action by filing a pro se 24 civil rights complaint under 42 U.S.C. § 1983 in the Central District of California on January 31, 25 2022. (Doc. No. 1). The Central District transferred the case to this Court. (Doc. No. 5). 26 Plaintiff did not pay the filing fee or file an application to proceed in forma pauperis (“IFP”). [27] 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636 (b)(1)(B) and Local Rule 302 28 (E.D. Ca. 2019). 1 (See docket). On February 9, 2022, the Court provided Plaintiff with 21 days to either move to 2 proceed IFP or pay the $402.00 filing fee. (Doc. No. 7). The Court enclosed an application and 3 cautioned Plaintiff that if he did not timely comply with the Court’s order, the undersigned would 4 recommend the case be dismissed. (Id.). On June 3, 2022, the undersigned issued an Order to 5 Show Cause directing Plaintiff to show cause why this case should not be dismissed for 6 Plaintiff’s failure to pay the filing fee or file an application to proceed IFP. (Doc. No. 8). 7 Plaintiff was provided 14 days to demonstrate why the Court should not recommend this matter’s 8 dismissal without prejudice for Plaintiff’s failure to prosecute this action and to timely comply 9 with the Court’s February 9, 2022 Order. (Id. at 2). The Court again warned Plaintiff that his 10 failure to timely respond to the Order to Show Cause would result in a recommendation that this 11 case be dismissed for failure to prosecute. (Id.). On June 15, 2022, the Court’s June 3, 2022 12 Order to Show Cause was returned as “undeliverable.” Plaintiff’s change of address was due no 13 later than August 22, 2022. Local Rule 183(b). Plaintiff has not filed an updated address as 14 required by Local Rule 182(f). (See docket). 15 II. APPLICABLE LAW 16 This Court’s Local Rules require litigants to keep the court apprised of their current 17 address and permits dismissal when the litigant fails to comply. Specifically: 18 “[a] party appearing in propria persona shall keep the Court and opposing parties advised as to his or her current address. If mail 19 directed to a plaintiff in propria persona by the Clerk is returned by the U.S. Postal Service, and if such plaintiff fails to notify the Court 20 and opposing parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without prejudice 21 for failure to prosecute.” 22 E.D. Cal. Loc. R. 183(b) (2019); see also Local Rule 182(f) (all parties are “under a continuing 23 duty” to notify the clerk of “any change of address.”). Precedent supports a dismissal of a case 24 when a litigant does not keep the court appraised on his address. Carey v. King, 856 F.2d 1439 25 (9th Cir. 1988) (affirming lower court and finding no abuse of discretion when district court 26 dismissed case without prejudice after pro se plaintiff did not comply with local rule requiring 27 pro se plaintiffs keep court apprised of addresses at all times); Hanley v. Opinski, Case No. 1:1628 cv-391-DAD-SAB, 2018 WL 3388510 (E.D. Ca. July 10, 2018) (dismissing action for failure to 1 prosecute and failure to provide court with current address). 2 Alternatively, Federal Rule of Civil Procedure 41(b) permits courts to involuntarily 3 dismiss an action when a litigant does not prosecute an action or does not comply with a court 4 order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884 , 889 5 (9th Cir. 2019) (citations omitted); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 6 683, 689 (9th Cir. 2005) (“[T]he consensus among our sister circuits, with which we agree, is that 7 courts may dismiss under Rule 41(b) sua sponte, at least under certain circumstances.”). Local 8 Rule 110 similarly permits courts to impose sanctions on a party who fails to comply with a court 9 order. Further, the procedural rules that govern this Court are to be “construed, administered and 10 employed by the court . . . to secure the just, speedy, and inexpensive determination of every 11 action and proceeding.” Fed. R. Civ. P. 1. 12 Involuntary dismissal is a harsh penalty, but it “is incumbent upon the Court to manage its 13 docket without being subject to routine noncompliance of litigants.” Pagtalunan v. Galaza, 291 14 F.3d 639, 642 (9th Cir. 2002). Before dismissing an action under Fed. R. Civ. P. 41, the court 15 must consider: (1) the public interest in expeditious resolution of litigation; (2) the court’s need to 16 manage a docket; (3) the risk of prejudice to defendant; (4) public policy favoring disposition on 17 the merits; and (5) the availability of less drastic sanctions. See Applied Underwriters, 913 F.3d 18 at 889 (noting that these five factors “must” be analyzed before a Rule 41 involuntarily 19 dismissal) (emphasis added); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) 20 (reviewing five factors and independently reviewing the record because district court did not 21 make finding as to each); but see Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 22 2000) (listing the same, but noting the court need not make explicit findings as to each) (emphasis 23 added); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (affirming dismissal of pro se § 24 1983 action when plaintiff did not amend caption to remove “et al” as the court directed and 25 reiterating that an explicit finding of each factor is not required by the district court). 26 III. ANALYSIS 27 The undersigned considers the above-stated factors and concludes they favor dismissal of 28 this case. The expeditious resolution of litigation is deemed to be in the public interest. Yourish 1 v. California Amplifier, 191 F.2d 983, 990-91 (9th Cir. 1999). Turning to the second factor, the 2 Court’s need to efficiently manage its docket cannot be overstated. This Court has “one of the 3 heaviest caseloads in the nation,” and due to unfilled judicial vacancies, which is further 4 exacerbated by the Covid-19 pandemic, operates under a declared judicial emergency. See 5 Amended Standing Order in Light of Ongoing Judicial Emergency in the Eastern District of 6 California. The Court’s time is better spent on its other matters than needlessly consumed 7 managing a case with a recalcitrant litigant. Indeed, “trial courts do not have time to waste on 8 multiple failures by aspiring litigants to follow the rules and requirements of our courts.” 9 Pagtalunan, 291 F.3d at 644 (Trott, J., concurring in affirmance of district court’s involuntary 10 dismissal with prejudice of habeas petition where petitioner failed to timely respond to court 11 order and noting “the weight of the docket-managing factor depends upon the size and load of the 12 docket, and those in the best position to know what that is are our beleaguered trial judges.”). 13 Delays have the inevitable and inherent risk that evidence will become stale or witnesses' 14 memories will fade or be unavailable and can prejudice a defendant, thereby satisfying the third 15 factor. See Sibron v. New York, 392 U.S. 40, 57 (1968). The Court has already attempted a less 16 drastic action by issuing an order to show cause providing Plaintiff additional time to file an IFP 17 application or pay the filing fee, but Plaintiff failed to do so and that order was returned as 18 undeliverable. Finally, the instant dismissal is a dismissal without prejudice, which is a lesser 19 sanction than a dismissal with prejudice, thereby addressing the fifth factor. 20 The Ninth Circuit permits courts to dismiss cases where the plaintiff neither moved to 21 proceed IFP nor paid the filing fee. Escobedo, 787 F.3d at 1228. A case cannot linger 22 indefinitely on this Court’s already overburdened docket. A dismissal of this action for failure to 23 prosecute and failure to comply with court orders is in accord with Ninth Circuit precedent as 24 well precedent governing Rule 41 dismissals. Further, the Court’s June 3, 2022 Order to Show 25 Cause was returned as undeliverable. And contrary to Local Rule 183(b), more than 63 days have 26 passed since mail was returned as undeliverable and Plaintiff has not updated his mailing address 27 or otherwise contacted the Court. Thus, it appears Plaintiff has abandoned this action. After 28 considering the factors set forth supra and binding case law, the undersigned recommends 1 | dismissal, without prejudice, under Fed. R. Civ. P. 41(b) and Local Rules 110 and 183(b). 2 Accordingly, it is ORDERED: 3 The Clerk of Court be directed to assign a district judge to this case. 4 Further, it is RECOMMENDED: 5 This case be dismissed without prejudice for Plaintiff's failure to prosecute this action 6 | and/or comply with the Court’s Local Rules and orders. 7 NOTICE TO PARTIES 8 These findings and recommendations will be submitted to the United States district judge 9 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within fourteen (14) 10 | days after being served with these findings and recommendations, a party may file written 11 || objections with the court. The document should be captioned “Objections to Magistrate Judge’s 12 | Findings and Recommendations.” Parties are advised that failure to file objections within the 13 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834 , 14 | 838-39 (Oth Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). [15] '© | Dated: _ November 28, 2022 Mihaw. Wh. foareh Zaskth 17 HELENA M. BARCH-KUCHTA ig UNITED STATES MAGISTRATE JUDGE