-JLT (PC) White v. Nguyen et al, No. 1:2010cv01466 - Document 42 (E.D. Cal. 2012)

Court Description: FINDINGS and RECOMMENDATIONS to Dismiss Defendant Chinyere Amadi Without Prejudice for Failure to Comply With Court's Order re 39 , signed by Magistrate Judge Jennifer L. Thurston on 8/15/12. Fourteen-day Deadline. Referred to Judge Ishii. (Gonzalez, R)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BOBBY WHITE, Case No. 1:10-cv-01466-AWI-JLT (PC) 12 13 v. 14 L. NGUYEN, et al., Plaintiff, FINDINGS AND RECOMMENDATION TO DISMISS DEFENDANT CHINYERE AMADI WITHOUT PREJUDICE FOR FAILURE TO COMPLY WITH COURT’S ORDER 15 Defendants. (Doc. 39). 16 17 18 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with this civil rights 19 action pursuant to 42 U.S.C. § 1983. (Doc. 1). On July 19, 2012, the Court issued an order to 20 show cause why Defendant Chinyere I. Amadi (“Amadi”) should not be dismissed from this 21 lawsuit without prejudice. (Doc. 39). Plaintiff has failed to respond to the Court’s order. For the 22 reasons set forth below, the Court recommends Defendant Amadi be dismissed from this action. 23 I. Background 24 On May 6, 2011, the Court screened Plaintiff’s amended complaint and found that it 25 stated a cognizable claim against Defendant Chinyere I. Amadi, among others. (Doc. 11.) On 26 June 29, 2011, the court directed the United States Marshal Service (“USMS”) to initiate service 27 of process in this action. (Doc. 15.) However, on August 24, 2011, the United States Marshal 28 returned service for Defendant Amadi, unexecuted. (Doc. 23.) 1 On September 23, 2011, the Court issued an order requiring Plaintiff to provide additional 2 information to effectuate service. (Doc. 25). Plaintiff provided the additional information, 3 including a corrected name for Defendant Amadi and an update address. (Doc. 26.) Once again, 4 the Court ordered the United States Marshall’s to initiate service. Despite the USMS’s attempt to 5 serve by mail and through the CDCR employee locator, the USMS certified that Amadi could not 6 be located. (Doc. 29). 7 In January 2012, the Court ordered Plaintiff to provide proper service information for 8 Amadi. (Doc. 30). Plaintiff responded with an address in Sioux Falls. (Doc. 31). The USMS 9 attempted both mail and personal service at the physical address provided by Plaintiff and found 10 11 12 the business located at that address was “closed – out of business.” (Doc. 38). On June 18, 2012, the remaining defendants filed their motion for summary judgment. The Court’s July 19, 2012 order to show cause followed. 13 II. Discussion and Analysis 14 “District courts have inherent power to control their dockets,” and in exercising that 15 power, a court may impose sanctions including dismissal of an action. Thompson v. Housing 16 Authority of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action with 17 prejudice, based on a party’s failure to prosecute an action or failure to obey a court order, or 18 failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9 th Cir. 2995) 19 (dismissal for failure to comply with local rules); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th 20 Cir. 1992) (dismissal for failure to comply with an order requiring amendment of complaint); 21 Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply 22 with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for 23 failure to prosecute and to comply with local rules). 24 In determining whether to dismiss an action for failure to prosecute, failure to obey a court 25 order, or failure to comply with the Local Rules, the Court must consider several factors, 26 including: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 27 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 28 disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Henderson, 1 779 F.2d at 1423-24; see also Ferdik, 963 F.2d at 1260-61; Thomspon, 782 F.2d at 831. 2 In the case at hand, the public’s interest in expeditiously resolving this litigation and the 3 Court’s interest in managing the docket weigh in favor of dismissal. The risk of prejudice to the 4 defendants also weighs in favor of dismissal, since a presumption of injury arises from the 5 occurrence of unreasonable delay in prosecution of an action. See Anderson v. Air West, 542 6 F.2d 522, 524 (9th Cir. 1976). The Court will not, and cannot, hold the case in abeyance based 7 upon Plaintiff’s failure respond to the Court’s order, provide correct service information, or 8 prosecute this action. Further, the factors in favor of dismissal outweigh the policy favoring 9 disposition of cases on their merits. 10 In its July 19, 2012 order, the Court warned Plaintiff that if he failed to comply with the 11 order, the Court may impose sanctions, including, but not limited to “dismissal of the action.” 12 (Doc.39 at 4). 13 noncompliance with the Court’s order, and this satisfies the requirement that the Court consider 14 less drastic measures than dismissal of the action. Ferdik, 963 F.2d at 1262; Henderson, 779 F.2d 15 at 1424. Moreover, no lesser sanction is feasible given the Court’s inability to communicate with 16 Plaintiff. Thus, Plaintiff had adequate warning that dismissal would result from his 17 Accordingly, IT IS HEREBY RECOMMENDED: 18 1. 19 only; and This action be DISMISSED WITHOUT PREJUDICE as to Defendant Amadi 20 These Findings and Recommendations are submitted to the United States District Judge 21 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the 22 Local Rules of Practice for the United States District Court, Eastern District of California. Within 23 fourteen days after being served with these Findings and Recommendations, any party may file 24 written objections with the court. 25 Magistrate Judge’s Findings and Recommendations.” 26 /// 27 /// 28 /// Such a document should be captioned “Objections to 1 2 The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 4 5 IT IS SO ORDERED. Dated: August 15, 2012 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEAC_Signature-END: 9j7khijed

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