United States District Court, C.D. California
ORER DISMISSING ACTION FOR FAILURE TO
Honorable John F. Walter United Stat es District Judge.
2, 2018, plaintiffs Richard Gene Stephens
("Plaintiff'), a prisoner in FCI Victorville Medium
I proceeding pro se, fled a Complaint under 42
U.S.C. § 1983. [Dkt. No. 1]. On the same day, Plaintiff
fled a request to proceed without prepaying the fling fee
("IFP Request"). [Dkt. No. 2]. The Court granted
Plaintiffs IFP Request but did not receive any payments. The
Court issued an Order to Show Cause fr Failure to Pay
Subsequent Partial Payments of Filing Fee, to which Plaintiff
responded saying that his family would pay the fling fees.
[Dkt. Nos. 6, 8]. Plaintiff also fled a Notice of change of
address, but the Court did not receive any payment toward the
fling fees. [Dkt. No. 7]. On May 24, 2019, the Court issued
an Order Dismissing Complaint with Leave to Amend. [Dkt. No.
9]. On June 5, 2019, the Court also issued an Order to Show
Cause Why Case Should Not be Dismissed fr Failure to Pay
Filing Fee. [Dkt. No. 10]. Both the Court's May 24, 2019
Order Dismissing with Leave to Amend and June 5, 2019 Order
to Show Cause were returned as undeliverable. [Dkt. Nos. 11,
12]. The Federal Bureau of Prisons Inmate Locater indicates
Plaintiff has been released. [Dkt. No. 11]. On August 6,
2019, the Court issued an Order to Show Cause Regarding
Failure to Update Address. [Dkt. No. 13]. This was also
returned. [Dkt. No. 14]. Plaintiff has not fled any response
to the May 24, 2019 Order Dismissing with Leave to Amend,
June 5, 2019 Order to Show Cause, or August 6, 2019 Order to
of this action is warranted due to Plaintiffs' failure to
prosecute the case and comply with court orders. The Court
has the inherent power to achieve the orderly and expeditious
disposition of cases by dismissing actions pursuant to
Fed.R.Civ.P. 41(b) fr failure to prosecute and failure to
comply with a court order. See Link v. Wabash R.R.
Co., 370 U.S. 626, 629-3o (1962); see also
Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th Cir. 2002).
Local Rule 41-6 permits the Court to dismiss an action for
failure to prosecute if a pro se plaintiff fails to
update their address within fifteen days of mail being
returned as undeliverable. L.R. 41-6. The Court weighs the
fellowing factors when determining whether to dismiss an
action fr failure to comply with a court order or failure to
prosecute: (1) the public's interest in the expeditious
resolution of litigation; (2) the Court's need to manage
its docket; (3) the risk of prejudice to the defendant; (4)
the public policy favoring disposition of cases on their
merits; and (5) the availability of less drastic sanctions.
Pagtalunan, 291 F.3d at 642.
the first, second, third, and fifth Carey factors
weigh in favor of dismissal. First, Plaintiff has filed to
engage with this case in anyway since June 2018 or to comply
with the local rule requiring pro se plaintiffs to
keep the Court apprised of their current address. This
failure to prosecute the case has interfered with the
public's interest in the expeditious resolution of this
litigation and the Court's need to manage its docket.
See Yourish v. California Amplifier, 191 F.3d 983,
990 (9th Cir. 1999) ("[T]he public's interest in
expeditious resolution of litigation always favors
dismissal."). Second, Plaintiff has filed to rebut the
presumption that defendants have been prejudiced by this
unreasonable delay. In re Eisen, 31 F.3d 1447,
1452-53 (9th Cir. 1994) ("The law presumes injury from
unreasonable delay.") (quoting Anderson v. Air West
Inc., 542 F.2d 522, 524 (9th Cir. 1976)). Third, there
is no less drastic sanction available as the Court has warned
Plaintiff multiple times that the case would be dismissed.
Accordingly, the Court has taken meaningful steps to explore
alternatives to dismissal. See Henderson v. Duncan,
779 F.2d 1421, 1424 (9th Cir. 1986) ("The district court
need not exhaust every sanction short of dismissal before
finally dismissing a case, but must explore possible and
meaningful alternatives."). Finally, although the fourth
factor always weighs against dismissal, here Plaintiff
failure to discharge his responsibility to move the case
towards a disposition outweighs the public policy favoring
disposition on the merits. Morris v. Morgan Stanley
Co., 942 F.2d 648, 652 (9th Cir. 1991) ("Although
there is indeed a policy favoring disposition on the merits,
it is the responsibility of the moving party to move towards
that disposition at a reasonable pace, and to refrain from
dilatory and evasive tactics."). Having weighed these
factors, the Court finds that dismissal of this action
without prejudice is warranted.
this action is dismissed without prejudice for failure to
prosecute. Judgment is to be entered accordingly.