Church v. Kernan

          FINDINGS AND RECOMMENDATIONS DISMISSING THE ACTION WITHOUT PREJUDICE

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE

         Plaintiffs 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.

         I. Background

         Judy 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.

         On 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 incompetent person.

(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.

         On 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.

         II. Service by Mail and the Local Rules

         Pursuant 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.

         III. Failure to Prosecute and Obey the Court's Orders

         The 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).

         IV. Discussion and Analysis

         To 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 ...