United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE.
is a former California state prisoner proceeding pro se with
a civil rights action pursuant to 42 U.S.C. § 1983.
Currently pending before the court is defendants' motion
to dismiss this action in accordance with Rule 41(b) of the
Federal Rules of Civil Procedure based on plaintiff's
failure to prosecute as well as his failure to comply with
the court's order to notify the court of any change of
address. For the reasons that follow, the undersigned
recommends granting defendants' motion and dismissing
this case without prejudice.
Factual and Procedural Background
action was commenced on October 20, 2008 based on
plaintiff's filing of a complaint against High Desert
State Prison officials Stovall, Lawrence, Hawkness, Aurich,
Orcher, Souce, Auigriu, Bonico and Weeks. All defendants
except for Stovall and Lawrence were dismissed from this
action on February 24, 2010. The complaint then proceeded on
claims arising from these defendants' alleged
inappropriate search of plaintiff and their alleged racial
bias in searches and seating at the High Desert State Prison
dining hall. ECF No. 39 at 6 (Findings and Recommendation
adopted by Order of February 24, 2010). At a trial
confirmation hearing before the late District Judge Lawrence
K. Karlton on September 4, 2012, this case was removed from
the court calendar and administratively closed until such
time as plaintiff filed a motion to proceed to trial. ECF No.
99. Over three years later, defendants filed the pending
motion to dismiss. ECF No. 100. However, the case remained
closed and was not re-assigned to a new district court or
magistrate judge until February 9, 2018. ECF No. 101.
review of the court's docket as well as the pending
motion to dismiss, it appears that plaintiff was released
from the California Department of Corrections on July 21,
2014. See ECF No. 100-2 at 1 (Declaration of C.
Amren, Litigation Coordinator at High Desert State Prison).
The court's last order from 2012 was also returned as
undeliverable to plaintiff. No change of address has been
filed by plaintiff as required by this court's order of
April 16, 2009. See ECF No. 13 at 5.
Motion to Dismiss
Stovall and Lawrence request the dismissal of this action
based on plaintiff's failure to file a motion to proceed
to trial or to prosecute this action. The motion also
requests dismissal based on plaintiff's failure to notify
the court of his change of address.
well established that district courts have authority to
dismiss actions for failure to prosecute or to comply with
court orders. See Fed.R.Civ.P. 41(b); Omstead v.
Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010)
(standard applied in dismissal for failure to prosecute);
Link v. Wabash Railroad Co., 370 U.S. 626, 629-30
(1962) (dismissal for failure to prosecute to avoid undue
delay or congestion in court calendars); Ferdik v.
Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (dismissal
for failure to comply with any court order).
“Dismissal, however, is so harsh a penalty it should be
imposed as a sanction only in extreme circumstances.”
Thompson v. Housing Authority of Los Angeles, 782
F.2d 829, 831 (9th Cir. 1986). Because dismissal is such a
severe remedy, the Ninth Circuit requires a District Court to
consider five factors before its imposition:
(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.
present action, all five factors suggest that dismissal is
warranted. The first two factors clearly suggest that the
harsh sanction of dismissal is appropriate because plaintiff
was granted a number of years to reset this matter for trial
and, instead of resolving the litigation, he failed to even
notify the court of his change of address once he was
released from custody. This hinders the court's ability
to move this case toward disposition, and strongly suggests
that plaintiff does not intend to litigate this action any
third factor -- prejudice to defendants -- also weighs in
favor of dismissal. A rebuttable presumption of prejudice to
a defendant arises when a plaintiff unreasonably delays
prosecution of an action. See In re Eisen, 31 F.3d
1447, 1452-53 (9th Cir. 1994). Nothing suggests that such a
presumption is unwarranted in this case.
the public policy favoring disposition of cases on their
merits generally weighs in plaintiff's favor, in this
case plaintiff has not indicated any interest in resolving
this civil rights action that was originally set for trial in
2012. See e.g., Hernandez v. City of El
Monte, 138 F.3d 393, 399 (9th Cir. 1998). It is
plaintiff's responsibility to move the case towards
disposition at a reasonable pace, and to avoid dilatory and
evasive tactics. See Morris v. Morgan Stanley, 942
F.2d 648, 652 (9th Cir. 1991). Plaintiff has not discharged