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Bruce v. Bloom

United States District Court, E.D. California

November 16, 2017

DARLA GAY BRUCE, Plaintiff,
v.
BLOOM, Defendant.

          FINDINGS AND RECOMMENDATIONS THAT THIS CASE BE DISMISSED FOR PLAINTIFF'S FAILURE TO COMPLY WITH A COURT ORDER AND FAILURE TO PROSECUTE OBJECTIONS DUE WITHIN FOURTEEN (14) DAYS

         Darla Gay Bruce (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on July 3, 2017.

         On July 11, 2017, the Court mailed two Court Orders to Plaintiff at her address on the docket. (ECF No. 5). Those Orders were returned as undeliverable (no reason given) shortly after they were mailed.

         A pro se plaintiff must keep the Court and opposing parties informed of the party's correct current address. Local Rule 182(f). If a party moves to a different address without filing and serving a notice of change of address, documents served at a party's old address of record shall be deemed received even if not actually received. Id.

         If mail directed to a pro se plaintiff at the address of record is returned by the United States Postal Service as undeliverable, the order will not be re-served a second time absent a notice of change of address. If a pro se plaintiff's address is not updated within sixty-three (63) days of mail being returned as undeliverable, the case will be dismissed for failure to prosecute. Local Rule 183(b).

         On October 4, 2017, the Court issued an Order directing Plaintiff to show cause within 14 days as to why this case should not be dismissed for failure to prosecute and failure to maintain a current mailing address. (ECF No. 9.) Plaintiff did not file a written response to the Order to show cause, as directed. Instead, the Court received a notice that the mailing was again returned as undeliverable.

         Plaintiff failed to keep the Court informed of her current address, as required by Local Rules 182 and 183. Accordingly, the Court will recommend that Plaintiffs case be dismissed for failure to comply with a court order and failure to prosecute.

         “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to comply with a court order, the Court must weigh the following factors: (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 defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits." Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).

         “‘The public's interest in expeditious resolution of litigation always favors dismissal.'” Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, this factor weighs in favor of dismissal.

         Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in and of itself to warrant dismissal.” Id. at 642 (citing Yourish, 191 F.3d at 991). However, Adelay inherently increases the risk that witnesses' memories will fade and evidence will become stale, " Id. at 643, and it is Plaintiffs failure to maintain a current mailing address that is causing delay. The case is now stalled as a result. Therefore, the third factor weighs in favor of dismissal.

         As for the availability of lesser sanctions, at this stage in the proceedings there is little available to the Court which would constitute a satisfactory lesser sanction while protecting the Court from further unnecessary expenditure of its scarce resources. Monetary sanctions are of little use, considering Plaintiffs incarceration and in forma pauperis status, and given the stage of these proceedings, the preclusion of evidence or witnesses is not available. Additionally, because the dismissal being considered in this case is without prejudice, the Court is stopping short of using the harshest possible sanction of dismissal with prejudice.

         Finally, because public policy favors disposition on the merits, this factor weighs against dismissal. Id.

         After weighing the factors, including the Court's need to manage its docket, the Court finds that dismissal is appropriate. Accordingly, the Court HEREBY RECOMMENDS that:

         1. This action be dismissed without prejudice, based on Plaintiffs failure to prosecute this case and failure to ...


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