United States District Court, E.D. California
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
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.
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.
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.
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
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.
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.
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.
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
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.
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.
because public policy favors disposition on the merits, this
factor weighs against dismissal. Id.
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:
action be dismissed without prejudice, based on Plaintiffs
failure to prosecute this case and failure to ...