United States District Court, C.D. California
ORDER DISMISSING ACTIONS WITH PREJUDICE FOR FAILURE
J. CARNEY U.S. DISTRICT JUDGE.
has three separate civil-rights actions pending in this
District. He has been in and out of jail since filing the
first one, in July 2017, and has repeatedly failed to timely
notify the Court of his changes of address, unnecessarily
delaying the resolution of various motions and the orderly
progression of the litigation. The Court has warned him that
failing to timely inform it and opposing counsel of address
changes may result in his lawsuits being dismissed. See,
e.g., McGruder v. Cnty. of L.A., No. CV 17-7024
(C.D. Cal. Sept. 18, 2017), ECF No. 77.
December 9, 2019, the Court attempted to serve an order on
Plaintiff in his latest lawsuit, but on December 26 it was
returned as undeliverable. McGruder v. L.A. Cnty. Health
Agency, No. CV 19-10293 (C.D. Cal. Dec. 26, 2019), ECF
No. 7. The envelope bears a stamp indicating that Plaintiff
had been released from his jail address of record.
Id. at 10. Indeed, the Court's review of the Los
Angeles County Sheriff's Department's Inmate
Information Center website shows that Plaintiff was released
on probation on December 11, 2019. See LASD Inmate
(search using Plaintiff's first and last name) (last
visited Dec. 30, 2019). Nearly three weeks later, he has not
filed a change of address in any of his cases.
Rule 41-6 provides that
[a] party proceeding pro se shall keep the Court . .
. apprised of such party's current address . . . . If
mail directed by the Clerk to a pro se
plaintiff's address of record is returned undelivered by
the Postal Service, and if, within fifteen (15) days of the
service date, such plaintiff fails to notify, in writing, the
Court and opposing parties of said plaintiff's current
address, the Court may dismiss the action with or without
prejudice for want of prosecution.
Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988)
(per curiam), examined when it is appropriate to dismiss a
plaintiff's lawsuit for failure to prosecute. See
also Link v. Wabash R.R., 370 U.S. 626, 629-30 (1962)
(“The power to invoke [dismissal] is necessary in order
to prevent undue delays in the disposition of pending cases
and to avoid congestion in the calendars of the District
deciding whether to dismiss a lawsuit for failure to
prosecute, a court must consider “(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.”
Carey, 856 F.2d at 1440 (citation omitted).
Unreasonable delay creates a rebuttable presumption of
prejudice to the defendant that can be overcome only with an
affirmative showing of just cause by the plaintiff. In re
Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994).
the first, second, third, and fifth Carey factors
militate in favor of dismissal. In particular, by failing to
file a change of address, Plaintiff has rendered the Court
unable to communicate with him. He has not rebutted the
presumption of prejudice to Defendants, and no less drastic
sanction is available. See Scott v. Belmares, 328
Fed.Appx. 538, 539 (9th Cir. 2009) (affirming dismissal of
civil-rights lawsuit in part because pro se plaintiff failed
to keep court apprised of change of address under Local Rule
41-6). Although the fourth Carey factor weighs
against dismissal - as it always does - together the other
factors outweigh the public's interest in disposing of
the case on its merits. And because Plaintiff has repeatedly
failed to timely file changes of address and has been warned
that his failure to do so could result in dismissal of his
cases, dismissal should be with prejudice. See Amina v.
WMC Mortg. Corp., 554 Fed.Appx. 555, 555 (9th Cir. 2014)
(upholding dismissal of action with prejudice for failure to
prosecute when plaintiffs “repeatedly” failed to
comply with obligations in prosecuting case despite being
warned that if they did not it might be dismissed). The Court
has no basis to believe that if these lawsuits are allowed to
continue or be refiled, Plaintiff will suddenly start
complying with his obligations in prosecuting them.
therefore is ORDERED that these actions are dismissed with
prejudice for failure to prosecute.
JUDGMENTS BE ENTERED ACCORDINGLY.
P. Rosenbluth ...