-SS Damon Keith Gaddy v. Mike McDonald, No. 2:2011cv08271 - Document 9 (C.D. Cal. 2011)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal; IT IS ORDERED THAT Judgment shall be entered dismissing this action with prejudice for failure to prosecute and obey Court orders. See order for details. (jy)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DAMON KEITH GADDY, 12 Petitioner, 13 v. 14 MIKE MCDONALD, Warden, 15 Respondent. ) ) ) ) ) ) ) ) ) ) NO. CV 11-08271 SS MEMORANDUM DECISION AND ORDER 16 17 I. 18 INTRODUCTION 19 20 On September 19, 2011,1 Damon Keith Gaddy ( Petitioner ), then a 21 California State prisoner proceeding pro se, constructively filed a 22 23 24 25 26 27 28 1 Under the mailbox rule, a pleading filed by a pro se prisoner is deemed to be filed as of the date the prisoner delivered it to prison authorities for mailing, not the date on which the pleading may have been received by the court. See Houston v. Lack, 487 U.S. 266, 270, 108 S. Ct. 2379, 101 L. Ed. 2d 245 (1988). Here, the Court has calculated the filing date of the Petition pursuant to the mailbox rule because the attached proof of service certifies that Petitioner delivered the Petition to prison officials for mailing on September 19, 2011. (See Petition at 63) (The Court refers to the pages of the Petition as if they were consecutively paginated.). 1 Petition for Writ of Habeas Corpus by a Person in State Custody (the 2 Petition ) pursuant to 28 U.S.C. § 2254. On October 5, 2011, the Clerk 3 of Court issued a Notice of Reference to a United States Magistrate 4 Judge (the Notice of Reference ). 5 to the High Desert State Prison, which was Petitioner s address of 6 record at the time. 7 Change of Address informing the Court of his new mailing address at a 8 private residence in Chino Hills, California. The Notice of Reference was mailed On October 12, 2011, Petitioner filed a Notice of 9 10 On October 14, 2011, the Court issued an "Order To Show Cause Why 11 This Action Should Not Be Dismissed As Untimely" (the Untimeliness 12 Order ) because the Petition appeared to be untimely on its face. 13 Untimeliness Order was mailed to Petitioner s new address at the private 14 residence in Chino Hills, California. 15 a response by October 28, 2011 if he wished to contest the dismissal of 16 this action. 17 response to the Untimeliness Order. The Petitioner was required to file (Untimeliness Order at 6). Petitioner failed to file a 18 19 On October 17, 2011, the Court received the Notice of Reference 20 returned from Petitioner s original address at the High Desert State 21 Prison. 22 Untimeliness Order returned from Petitioner s new address at the private 23 residence in Chino, Hills, California. 24 Court issued an Order To Show Cause Why This Action Should Not Be 25 Dismissed For Failure To Provide A Current Address (the Address 26 Order ). 27 the private residence in Chino Hills, California. 28 District Local Rule 41-6, Petitioner was required to provide the Court Similarly, on October 20, 2011, the Court received the Thus, on October 24, 2011, the The Address Order was mailed to Petitioner s new address at 2 Pursuant to Central 1 with a current address by November 8, 2011. (Address Order at 2). 2 However, on October 31, 2011, the Court received the Address Order 3 returned from Petitioner s new address at the private residence in 4 Chino, Hills, California. As of today, Petitioner has failed to respond 5 to any of the Court s orders and has failed to provide a current 6 address. 7 8 Petitioner has consented to the jurisdiction of the undersigned 9 United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).2 For the 10 2 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Upon the consent of the parties, a magistrate judge may conduct any or all proceedings in a jury or nonjury civil matter and order the entry of judgment in the case. 28 U.S.C. § 636(c)(1). Here, Petitioner is the only party to the instant proceeding and has consented to the jurisdiction of the undersigned United States Magistrate Judge. (Petition at 61). Respondent has not yet been served with the Petition and therefore is not a party to this proceeding. See, e.g., Travelers Cas. & Sur. Co. of Am. v. Brenneke, 551 F.3d 1132, 1135 (9th Cir. 2009) ( A federal court is without personal jurisdiction over a defendant unless the defendant has been served in accordance with Fed. R. Civ. P. 4. (internal quotation marks omitted)). Thus, all parties have consented pursuant to 28 U.S.C. § 636(c)(1). See, e.g, Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (holding that magistrate judge had jurisdiction to dismiss prison inmate s action under 42 U.S.C. § 1983 as frivolous without consent of defendants because defendants had not been served yet and therefore were not parties); United States v. Real Property, 135 F.3d 1312, 1317 (9th Cir. 1998) (holding that magistrate judge had jurisdiction to enter default judgment in an in rem forfeiture action even though property owner had not consented to it because 28 U.S.C. § 636(c)(1) only requires the consent of the parties and the property owner, having failed to comply with the applicable filing requirements, was not a party ); see also Patrick Collins, Inc. v. Doe, 2011 U.S. Dist. LEXIS 125671, at *4 n.1 (N.D. Cal. Oct. 31, 2011) ( Here, Plaintiff has consented to magistrate jurisdiction and the Doe Defendants have not yet been served. Therefore, the Court finds that it has jurisdiction under 28 U.S.C. § 636(c) to decide the issues raised in the instant motion(s). ); Third World Media, LLC v. Doe, 2011 WL 4344160, at *3 (N.D. Cal. Sept. 15, 2011) ( The court does not require the consent of the defendants to dismiss an action when the defendants have not been served and therefore are not parties under 28 U.S.C. § 636(c). ); Kukiela v. LMA Prof l Recovery Group, 2011 U.S. Dist. LEXIS 85417, at *1 n.1 (D. Ariz. Aug. 1, 2011) ( Plaintiff consented to 3 1 reasons discussed below, the Court DISMISSES THIS ACTION WITH PREJUDICE 2 pursuant to Federal Rule of Civil Procedure 41(b) for failure to 3 prosecute and failure to comply with Court orders. 4 5 II. 6 DISCUSSION 7 8 Federal Rule of Civil Procedure 41(b) grants district courts the 9 authority to sua sponte dismiss actions for failure to prosecute or for 10 failure to comply with court orders. See Link v. Wabash R.R., 370 U.S. 11 626, 629-31, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962) ( The power to 12 invoke this sanction is necessary in order to prevent undue delays in 13 the disposition of pending cases and to avoid congestion in the 14 calendars of the District Courts. ). 15 penalty and is to be imposed only in extreme circumstances. 16 Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). Dismissal, however, is a harsh See 17 18 19 In considering whether to dismiss an action for failure to prosecute, the Court must weigh five factors: (1) the public s interest 20 21 proceed before a United States Magistrate Judge for all proceedings in 22 this case, including entry of final judgment, pursuant to 28 U.S.C. §636(c)(1). (Doc. 7.) Because Defendant did not appear and establish its 23 standing as a party in this action, the Magistrate Judge has 24 jurisdiction to enter the requested default judgment. ); Quigley v. Geithner, 2010 WL 3613901, at *1 (D. Idaho Sept. 8, 2010) ( Plaintiff, 25 the only party appearing in this case, has consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this 26 case. ); Ornelas v. De Frantz, 2000 WL 973684, at *2 n.2 (N.D. Cal. June 27 29, 2000) ( The court does not require the consent of defendants in order to dismiss this action because defendants have not been served, 28 and, as a result, are not parties under the meaning of 28 U.S.C. § 636(c). ). 4 1 in expeditious resolution of litigation; (2) the court s need to manage 2 its docket; (3) the risk of prejudice to defendants/respondents; (4) the 3 availability of less drastic alternatives; and (5) the public policy 4 favoring disposition of cases on their merits. 5 291 F.3d 639, 642 (9th Cir. 2002). Pagtalunan v. Galaza, 6 7 A. The Five Factors Support Dismissal 8 9 1. Expeditious Resolution And The Court s Need To Manage Its Docket 10 11 12 In the instant action, the first two factors the public s interest 13 in expeditious resolution of litigation and the Court s need to manage 14 its docket favor dismissal. 15 the Untimeliness Order, and the Address Order to Petitioner s current 16 address of record. However, all of these documents were returned to the 17 Court unopened. 18 current address hinders the Court s ability to move this case toward 19 disposition and indicates that Petitioner does not intend to litigate 20 this action diligently. 21 dismissal here. The Court mailed the Notice of Reference, Petitioner s failure to provide the Court with a As a result, the first two factors favor 22 23 2. The Risk Of Prejudice To Respondent 24 25 The third factor prejudice to the Respondent also favors dismissal. 26 The risk of prejudice to a respondent is related to the plaintiff s 27 reason for failure to prosecute an action. 28 5 See Pagtalunan, 291 F.3d at 1 642 (citing Yourish v. California Amplifier, 191 F.3d 983, 991 (9th Cir. 2 1999)). 3 4 Here, Petitioner has failed to provide the Court with a current 5 address and has not provided any excuse for failing to do so. Where a 6 party offers a poor excuse for failing to comply with a court s order, 7 the prejudice to the opposing party is sufficient to favor dismissal. 8 See Yourish, 191 F.3d at 991-92. 9 Respondent favors dismissal. Accordingly, the prejudice to 10 11 3. Less Drastic Alternatives 12 13 The fourth factor the favors availability dismissal. The of Court less has drastic 14 alternatives also meaningfully 15 attempted to avoid outright dismissal of this action by granting 16 Petitioner numerous opportunities to respond. 17 provided Petitioner fourteen days to respond to the Untimeliness Order. 18 (Untimeliness Order at 6). 19 from Petitioner s listed address, the Court provided Petitioner fifteen 20 days to respond to the Address Order. 21 again, the Court s order was returned undelivered. 22 Local Rule 41-6 allows the Court to dismiss an action with or without 23 prejudice if mail is returned undelivered by the Postal Service, and 24 if, within fifteen (15) days of the service date, such [petitioner] 25 fails to notify, in writing, the Court and opposing parties of said 26 [petitioner s] current address . . . . 27 Petitioner has failed to provide the Court with a current address within 28 fifteen days of service. The Court initially When that order was returned undelivered (Address Order at 2). Once Central District C.D. Cal. L.R. 41-6. Here, Accordingly, the Court is unable to move this 6 1 case forward because Petitioner has not received any of the Court s 2 orders. 3 appropriate given 4 litigation. See Henderson, 779 F.2d at 1424 ( The district court need 5 not exhaust every sanction short of dismissal before finally dismissing 6 a case, but must explore possible and meaningful alternatives. ). Alternatives other than Petitioner s dismissal failure to do not appear participate in to be his own 7 4. 8 Public Policy Favoring Disposition On The Merits 9 10 The fifth factor the public policy favoring the disposition of 11 cases on their merits ordinarily weighs against dismissal. However, it 12 is the responsibility of the moving party to prosecute the action at a 13 reasonable pace, and to refrain from dilatory and evasive tactics. 14 Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991). 15 Petitioner s failure to update his address is evidence that he does not 16 intent to prosecute this action at a reasonable pace. 17 circumstances, the public policy favoring the resolution of disputes on 18 the merits does not outweigh Petitioner s failure to file responsive 19 documents. See Under these 20 21 B. Dismissal Of This Action Is Appropriate 22 23 24 For the stated reasons, the Court concludes that dismissal of this action is warranted under Rule 41(b), which states: 25 26 [A] dismissal under this subdivision (b) and any 27 dismissal not under this rule -except one for lack 28 of jurisdiction, improper venue, or failure to join 7 1 a party under Rule 19--operates as an adjudication 2 on the merits. 3 4 Fed. R. Civ. P. 41(b). 5 6 The Court concludes that dismissal of this action is appropriate 7 due to Petitioner s failure to prosecute and obey Court orders. As this 8 case does not fall into one of the three exceptions noted above, the 9 dismissal will operate as an adjudication on the merits. The dismissal 10 will thus be with prejudice to Plaintiff s refiling of a new petition 11 based on the same underlying conviction. 12 297 13 adjudication on the merits unless one of the Rule 41(b) exceptions 14 applies); Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 714 15 (9th Cir. 2001) (dismissal for failure to prosecute is treated as an 16 adjudication on the merits) (citing United States v. Schimmels (In re 17 Schimmels), 127 F.3d 875, 884 (9th Cir. 1997)). F.3d 953, 956 (9th Cir. 2002) See Stewart v. U.S. Bancorp, (dismissal interpreted as an 18 19 III. 20 CONCLUSION 21 22 23 IT IS ORDERED THAT Judgment shall be entered dismissing this action with prejudice for failure to prosecute and obey Court orders. 24 25 26 27 DATED: November 9, 2011. /S/ ______________________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 28 8

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