United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS DISMISSING THE ACTION
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
contend the defendants are liable for violations of their
civil rights and those of Daniel Church, who died while in
custody at Wasco State Prison. (Doc. 1) However, as discussed
below, the plaintiffs have failed to comply with the Local
Rules and the Court's orders and failed to prosecute this
action. Therefore, the Court recommends the matter be
DISMISSED without prejudice.
Church, the mother of the decedent, and D.C., the minor child
of the decedent, initiated this action by filing a complaint
on July 3, 2019. (Doc. 1) The Court issued new civil case
documents to the plaintiffs on July 9, 2019, including an
order setting a mandatory scheduling conference and directing
Plaintiffs to diligently pursue service of the summons and
complaint. (Doc. 2) On July 26, 2019, the mail to Ms. Church
was returned as undeliverable.
September 17, 2019, the Court observed that Plaintiff D.C.
had not filed a motion for appointment of a guardian ad
litem, though the complaint indicated he was seeking to bring
his claims through Cheyenne Dakota Morales, his legal
guardian. (Doc. 3) The Court informed Plaintiffs that
pursuant to Local Rule 202:
Upon commencement of an action or upon initial appearance in
defense of an action by or on behalf of a minor or
incompetent person, the attorney representing the minor or
incompetent person shall present (1) appropriate evidence of
the appointment of a representative for the minor or
incompetent person under state law or (2) a motion for the
appointment of a guardian ad litem by the Court, or, (3) a
showing satisfactory to the Court that no such appointment is
necessary to ensure adequate representation of the minor or
(Doc. 3 at 1, quoting Local Rule 202) Because the claims of a
minor such as D.C. could only be brought “by a next
friend or a guardian ad litem, ” the Court ordered
Plaintiffs to file a motion for the appointment of a guardian
ad litem for D.C. no later than October 18, 2019.
(Id. at 1-2) Again, this order was returned as
undeliverable from the address of record for Ms. Church on
October 1, 2019. However, it appears service was completed at
the address of record for D.C., as no mail was returned by
the United States Postal Service. Nevertheless, no motion for
the appointment of a guardian ad litem was filed.
October 22, 2019, the Court ordered Plaintiff D.C. to show
cause in why the action should not be dismissed for failure
to comply with the Court's order and failure to prosecute
the case by seeking the appointment of a guardian ad litem.
(Doc. 4) In the alternative, D.C. was directed file a
petition for the appointment of a guardian ad litem within
fourteen days. (Id.) The Court served both D.C. and
Ms. Church with the order. The order to Ms. Church was
returned as undeliverable on November 4, 2019. To date, D.C.
has not filed a motion for appointment of a guardian ad
litem, and no other action has been taken to prosecute the
claims of D.C.
Service by Mail and the Local Rules
to Local Rule 183(b), a party appearing in propria persona is
required to keep the Court apprised of a current address:
“If mail directed to a plaintiff in propria persona by
the Clerk is returned by the U.S. Postal Service, and if such
plaintiff fails to notify the Court and opposing parties
within sixty-three (63) days thereafter of a current address,
the Court may dismiss the action without prejudice for
failure to prosecute.” LR 183(b). Because more than 63
days have passed since the Court's civil case documents
and standing orders were returned as undeliverable, Ms.
Church has failed to comply with the Local Rules.
Failure to Prosecute and Obey the Court's
Local Rules, corresponding with Fed.R.Civ.P. 11, provide:
“Failure of counsel or of a party to comply with . . .
any order of the Court may be grounds for the imposition by
the Court of any and all sanctions . . . within the inherent
power of the Court.” LR 110. “District courts
have inherent power to control their dockets, ” and in
exercising that power, a court may impose sanctions including
dismissal of an action. Thompson v. Housing Authority of
Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court
may dismiss an action for a party's failure to prosecute
an action or failure to obey a court order. See,
e.g. Ferdik v. Bonzelet, 963 F.2d 1258,
1260-61 (9th Cir. 1992) (dismissal for failure to comply with
an order); Malone v. U.S. Postal Service, 833 F.2d
128, 130 (9th Cir. 1987) (dismissal for failure to comply
with a court order); Henderson v. Duncan, 779 F.2d
1421, 1424 (9th Cir. 1986) (dismissal for failure to
prosecute and to comply with local rules).
Discussion and Analysis
determine whether to dismiss an action for failure to
prosecute, failure to comply with the Local Rules, or failure
to obey a court order, the Court must consider several
factors, including: “(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