United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS DISMISSING THE ACTION
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
Hairston initiated this action by filing on February 9, 2017.
(Doc. 1) Plaintiff failed to pay the filing fee as previously
ordered by the Court and failed to comply with the Local
Rules requiring him to keep the Court apprised of a current
address. Thus, the Court RECOMMENDS that the
action be DISMISSED without prejudice.
Relevant Procedural History
contends his civil rights were violated and he suffered
bodily injury in an incident at Tehachapi California
Correctional Institution on September 28, 2014. (See
Doc. 1 at 3) Previously, Plaintiff filed a complaint related
to the same incident and against similar defendants in Case
No. 1:16-cv-01190-LJO-BAM. The Court observed that
“Plaintiff is subject to 28 U.S.C. § 1915(g),
which provides that ‘[i]n no event shall a prisoner
bring a civil action . . . under this section if the prisoner
has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a
court of the United States that was dismissed on the grounds
that it is frivolous, malicious, or fails to state a claim
upon which relief may be granted, unless the prisoner is
under imminent danger of serious physical injury.'”
(Case No. 1:16-cv-01190-LJO-BAM, Doc. 15 at 1-2) The Court
took judicial notice of the fact that Plaintiff previously
filed three actions that were dismissed by the Central
District of California, including: Hairston v.
Hudson, 5:10-cv-00750-UA-MLG (C.D. Cal.) (dismissed May
28, 2010); Hairston v. Oliver, 5:10-cv-00775-UA-MLG
(C.D. Cal.) (dismissed June 8, 2010); Hairston v.
CCI/CDC, 5:10-cv-00865-UA-MLG (C.D. Cal.) (dismissed
June 23, 2010). Finding Plaintiff had filed three cases that
were dismissed for the reasons identified under 28 U.S.C.
§ 1915(g), the Court dismissed the action “without
prejudice to re-filing accompanied by the $400.00 filing
fee.” (Case No. 1:16-cv-01190-LJO-BAM, Doc. 15
at 2) (emphasis added).
Plaintiff failed to pay the filing fee as ordered when he
initiated this action, the Court again directed Plaintiff
“pay the $400.00 filing fee within fourteen days of the
date of service” on March 16, 2017. (Doc. 7) However on
April 4, 2017, the Court's order was returned as
undeliverable. To date, Plaintiff's current mailing
address remains unknown.
Requirements of the Local Rules
to Local Rule 183(b), a party appearing in propria persona is
required to keep the Court apprised of his current address:
“If mail 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 and opposing parties
within sixty-three (63) days thereafter of a current address,
the Court may dismiss the action without prejudice for
failure to prosecute.” LR 183(b). Because more than 63
days have passed since the Court's order was returned as
undeliverable, Plaintiff has failed to comply with the Local
Discussion and Analysis
courts have inherent power to control their dockets, ”
and in exercising that power, a court may impose sanctions
including dismissal of an action. Thompson v. Housing
Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir.
1986). A court may dismiss an action with prejudice, based on
a party's failure to prosecute an action or failure to
obey a court order, or failure to comply with local rules.
See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th
Cir. 2995) (dismissal for failure to comply with local
rules); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61
(9th Cir. 1992) (dismissal for failure to comply with an
order requiring amendment of complaint); Malone v. U.S.
Postal Service, 833 F.2d 128, 130 (9th Cir. 1987)
(dismissal for failure to comply with a court order);
Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir.
1986) (dismissal for failure to prosecute and to comply with
determining whether to dismiss an action for failure to
prosecute, failure to comply with the Local Rules, or failure
to obey a court order, the Court must consider several
factors, including: “(1) the public's interest in
expeditious resolution of litigation; (2) the court's
need to manage its docket; (3) the risk of prejudice to the
defendants; (4) the public policy favoring disposition of
cases on their merits; and (5) the availability of less
drastic sanctions.” Henderson, 779 F.2d at
1423-24; see also Ferdik, 963 F.2d at 1260-61;
Thompson, 782 F.2d at 831.
case at hand, the public's interest in expeditiously
resolving this litigation and the Court's interest in
managing the docket weigh in favor of dismissal. See
Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir.
1999) (“The public's interest in expeditious
resolution of litigation always favors dismissal”);
Ferdik, 963 F.2d at 1261 (recognizing that district
courts have inherent interest in managing their dockets
without being subject to noncompliant litigants). Judges in
the Eastern District of California carry the heaviest
caseload in the nation, and this Court cannot, and will not
hold, this action in abeyance while waiting for Plaintiff to
notify the Court of a change in address. Further, the policy
favoring disposition of cases on their merits is outweighed
by the factors in favor of dismissal.
Findings and Recommendations
has failed to follow the requirements of the Local Rules and
failed to comply with the Court's order to pay the filing
fee. As set forth above, the factors articulated by the Ninth
Circuit weigh in favor of dismissal, and no lesser sanction
is feasible given the ...