Goods v. Bakersfield Police Department, No. 1:2017cv01009 - Document 5 (E.D. Cal. 2017)

Court Description: FINDINGS and RECOMMENDATIONS Dismissing the Action Without Prejudice, signed by Magistrate Judge Jennifer L. Thurston on 11/27/2017. Referred to Judge Dale A. Drozd. Objections to F&R due within 14 days. (Hall, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES GOODS, 12 Plaintiff, 13 14 v. BAKERSFIELD POLICE DEPT., 15 Defendant. ) ) ) ) ) ) ) ) ) Case No.: 1:17-cv-01009-DAD-JLT FINDINGS AND RECOMMENDATIONS DISMISSING THE ACTION WITHOUT PREJUDICE 16 17 Charles Goods seeks to proceed pro se and in forma pauperis in this action against the 18 Bakersfield Police Department for a violation of his civil rights. Because Plaintiff has failed to comply 19 with the Local Rules and failed to prosecute this action, the Court recommends the matter be 20 DISMISSED without prejudice. 21 I. 22 Background Plaintiff initiated this action by filing a complaint on July 31, 2017. (Doc. 1) The Court 23 reviewed the allegations in the compliant pursuant to 28 U.S.C. 1915(e)(2), and determined Plaintiff 24 failed to clearly identify the cause of action upon which he seeks to proceed. (Doc. 4) Further, the 25 facts alleged were insufficient for the Court to determine Plaintiff stated a cognizable claim. (Id. at 7- 26 8) Therefore, the Court dismissed the complaint with leave to amend. (Id. at 8) 27 28 On September 19, 2017, the order was returned to the Court as “undeliverable” by the United States Post Office. To date, Plaintiff’s forwarding address remains unknown, because he has not filed a 1 1 “Notice of Change of Address” with the Court. 2 II. Requirements of the Local Rules Pursuant to Local Rule 183(b), a party appearing in propria persona is required to keep the 3 4 Court apprised of his current address: “If mail directed to a plaintiff in propria persona by the Clerk is 5 returned by the U.S. Postal Service, and if such plaintiff fails to notify the Court and opposing parties 6 within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without 7 prejudice for failure to prosecute.” LR 183(b). Because more than 63 days have passed since the 8 document was returned as undeliverable because Plaintiff was paroled, he has failed to comply with 9 the Local Rules. 10 III. Failure to Prosecute 11 “District courts have inherent power to control their dockets,” and in exercising that power, a 12 court may impose sanctions including dismissal of an action. Thompson v. Housing Authority of Los 13 Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action with prejudice, based on a 14 party’s failure to prosecute an action or failure to obey a court order, or failure to comply with local 15 rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 2995) (dismissal for failure to comply 16 with local rules); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to 17 comply with an order requiring amendment of complaint); Henderson v. Duncan, 779 F.2d 1421, 1424 18 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). In determining whether to dismiss an action for failure to prosecute, failure to comply with the 19 20 Local Rules, or failure to obey a court order, the Court must consider several factors, including: “(1) 21 the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 22 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 23 merits; and (5) the availability of less drastic sanctions.” Henderson, 779 F.2d at 1423-24; see also 24 Ferdik, 963 F.2d at 1260-61; Thompson, 782 F.2d at 831. 25 IV. 26 Discussion and Analysis To determine whether to dismiss an action for failure to prosecute and failure to comply with 27 the Local Rules, the Court must consider several factors, including: “(1) the public’s interest in 28 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice 2 1 to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the 2 availability of less drastic sanctions.” Henderson, 779 F.2d at 1423-24; see also Ferdik, 963 F.2d at 3 1260-61; Thomspon, 782 F.2d at 831. Public interest and the Court’s docket 4 A. 5 In the case at hand, the public’s interest in expeditiously resolving this litigation and the 6 Court’s interest in managing the docket weigh in favor of dismissal. See Yourish v. Cal. Amplifier, 7 191 F.3d 983, 990 (9th Cir. 1999) (“The public’s interest in expeditious resolution of litigation always 8 favors dismissal”); Ferdik, 963 F.2d at 1261 (recognizing that district courts have inherent interest in 9 managing their dockets without being subject to noncompliant litigants). This Court cannot, and will 10 not hold, this case in abeyance based upon Plaintiff’s failure to comply with the Local Rules and 11 failure to take action to continue prosecution in a timely manner. See Morris v. Morgan Stanley & 12 Co., 942 F.2d 648, 652 (9th Cir. 1991) (explaining a plaintiff has the burden “to move toward… 13 disposition at a reasonable pace, and to refrain from dilatory and evasive tactics”). Accordingly, these 14 factors weigh in favor of dismissal of the action. 15 B. Prejudice to Defendant 16 To determine whether the defendant has been prejudiced, the Court must “examine whether the 17 plaintiff’s actions impair the … ability to go to trial or threaten to interfere with the rightful decision of 18 the case.” Malone, 833 F.2d at 131 (citing Rubin v. Belo Broadcasting Corp., 769 F.2d 611, 618 (9th 19 Cir. 1985)). Significantly, a presumption of prejudiced arises when a plaintiff unreasonably delays the 20 prosecution of an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). Here, Plaintiff 21 has not taken any action to prosecute the action. Accordingly, this factor weighs in favor of dismissal. 22 C. Consideration of less drastic sanctions 23 The Court “abuses its discretion if it imposes a sanction of dismissal without first considering 24 the impact of the sanction and the adequacy of less drastic sanctions.” United States v. Nat’l Medical 25 Enterprises, Inc., 792 F.2d 906, 912 (9th Cir. 1986). However, no lesser sanction is feasible given the 26 Court’s inability to communicate with Plaintiff. 27 D. Public policy 28 Given Plaintiff’s failure to comply with the Local Rules and failure to prosecute the action, the 3 1 policy favoring disposition of cases on their merits is outweighed by the factors in favor of dismissal. 2 See Malone, 833 F.2d at 133, n.2 (explaining that although “the public policy favoring disposition of 3 cases on their merits . . . weighs against dismissal, it is not sufficient to outweigh the other four 4 factors”). 5 V. 6 Findings and Recommendations Plaintiff has failed to follow the requirements of the Local Rules or to prosecute this action. 7 As set forth above, the factors set forth by the Ninth Circuit weigh in favor of dismissal of the matter. 8 Accordingly, the Court ORDERS: 9 1. This action be DISMISSED without prejudice; and 10 2. The Clerk of Court be directed to close this action. 11 These Findings and Recommendations are submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local 13 Rules of Practice for the United States District Court, Eastern District of California. Within fourteen 14 days after being served with these Findings and Recommendations, Plaintiff may file written objections 15 with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 16 Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 17 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991); 18 Wilkerson v. Wheeler, 772 F.3d 834, 834 (9th Cir. 2014). 19 20 21 22 IT IS SO ORDERED. Dated: November 27, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 4

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