United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THIS
CASE BE DISMISSED WITHOUT PREJUDICE, FOR FAILURE TO
Ray White (“Plaintiff”), is proceeding pro
se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983. At the time he
filed suit, Plaintiff was a prisoner in the custody of the
Fresno County Sheriff's Office. On March 18, 2019, the
Court adopted Findings and Recommendations and ordered that
“this action shall proceed only on plaintiff's
claim of excessive force against defendants Deputy Lao and
Deputy Gonzalez.” (ECF No. 21, p. 2.)
Clerk's Office mailed a copy of the Order Adopting
Findings and Recommendations to Plaintiff at his listed
address of 1735022, Fresno County Jail, P.O. Box 872, Fresno,
Order was returned as undeliverable on April 1, 2019.
Plaintiff has not responded to the Court's order or filed
a notice of change of address. Accordingly, because it has been
more than 63 days since the order was returned as
undeliverable, the Court will recommend that Plaintiffs case
be dismissed, without prejudice, for 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
the Court's need to manage its docket, “[t]he trial
judge is in the best position to determine whether the delay
in a particular case interferes with docket management and
the public interest…. It is incumbent upon the Court
to manage its docket without being subject to routine
noncompliance of litigants....” Pagtalunan,
291 at 639. As described above, Plaintiff has failed to
respond to a court order and has failed to update his
address. These failures are delaying this case and
interfering with docket management. Therefore, the second
factor weighs in favor of dismissal.
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 respond to a court
order and to comply with the Local Rule requiring him to keep
the parties and the Court apprised of his current address
that is causing delay. 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. Considering Plaintiffs in
forma pauperis status, monetary sanctions are of
little use, 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
because public policy favors disposition on the merits, this
factor weighs against dismissal. Id.
weighing the factors, the Court finds that dismissal without
prejudice is appropriate. Accordingly, the Court HEREBY
1. This action be dismissed, without prejudice, based on
Plaintiffs failure to prosecute this case; and
2. The Clerk of Court be directed to close this case.
findings and recommendations will be submitted to the United
States district judge assigned to the case, pursuant to the
provisions of Title 28 U.S.C. § 636(b)(1). Within
twenty-one (21) days after being served with these findings
and recommendations, Plaintiff may file written objections
with the Court. The document should be captioned
“Objections to Magistrate Judge's Findings and
Recommendations.” Plaintiff is advised that failure to
file objections within the specified time may result in the
waiver of rights on appeal. Wilkerson v. Wheeler,
772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v.
Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
is also advised that the Court will vacate these findings and
recommendations if he updates his current address in
accordance with Local Rule 183(b) within the twenty-one day
timeframe within ...