(PC) Frisby v. California City Correctional Facility et al, No. 1:2019cv01403 - Document 14 (E.D. Cal. 2021)
Court Description: FINDINGS and RECOMMENDATIONS that this Case Be Dismissed without Prejudice, signed by Magistrate Judge Helena M. Barch-Kuchta on 05/03/2021. Referred to Judge Unassigned DJ. Objections to F&R Due Within Fourteen-Days. (Maldonado, C)
Download PDF
<![CDATA[
(PC) Frisby v. California City Correctional Facility et al Doc. 14 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARK RAYMOND FRISBY, 12 Plaintiff, 13 14 15 v. CALIFORNIA CITY CORRECTIONAL FACILITY and EMPLOYEES OF CALIFORNIA CITY PRISON, 16 No. 1:19-cv-01403-NONE-HBK FINDINGS AND RECOMMENDATIONS THAT THIS CASE BE DISMISSED WITHOUT PREJUDICE 1 OBJECTIONS DUE IN FOURTEEN DAYS 2 Defendants. 17 This matter comes before the court upon initial review of the file, which was reassigned to 18 the undersigned on November 17, 2020. (Doc. No. 13). As more fully set forth below, the 19 undersigned recommends the court dismiss this case without prejudice due to plaintiff’s failure to 20 prosecute this action and failure to update his address of record. 21 I. FACTS AND BACKGROUND 22 Plaintiff Mark Raymond Frisby is a former state prisoner proceeding pro se and in forma 23 pauperis on his civil rights complaint filed under 42 U.S.C. § 1983. (Doc. Nos. 1, 7). On 24 February 26, 2020, the court screened plaintiff’s complaint and concluded it failed “to state a 25 26 1 27 28 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Ca. 2019). 2 Due to the age of this case and because plaintiff is no longer incarcerated, he is subject to a 14-day objection period pursuant to Local Rule 304(b) (E.D. Ca. 2019). 1 Dockets.Justia.com 1 cognizable claim against any defendant.” (Doc. No. 10 at 4). The court permitted plaintiff 30 2 days to amend his complaint, with failure to do so cause for dismissal. (Id. at 5). 3 Well after the thirty (30) days period expired, the court issued an order to show cause why 4 the court should not dismiss the case for plaintiff’s failure to prosecute and to comply with the 5 court’s February 26, 2020 Order. (See May 28, 2020 Order, Doc. No. 11 at 1-2). As of the date 6 of these findings and recommendations, plaintiff has not responded to the order to show cause nor 7 amended his complaint. Although both the February 26, 2020 and May 28, 2020 orders were 8 delivered to plaintiff, the court’s November 17, 2020 reassignment order was returned to the court 9 as “Undeliverable.” 10 11 12 13 14 15 16 II. APPLICABLE LAW This court’s Local Rules require litigants to keep the court apprised of their current address, specifically providing: “[a] party appearing in propria persona shall keep the Court and opposing parties advised as to his or her 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.” 17 E.D. Cal. Loc. R. 183(b) (2019). Federal Rule of Civil Procedure 41(b) permits the court to 18 involuntarily dismiss an action when a litigant fails to prosecute an action or fails to comply with 19 other Rules or with a court order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. 20 Lichtenegger, 913 F.3d 884, 889 (9th Cir. 2019) (citations omitted); Hells Canyon Pres. Council 21 v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (“[T]he consensus among our sister 22 circuits, with which we agree, is that courts may dismiss under Rule 41(b) sua sponte, at least 23 under certain circumstances.”). Local Rule 110 similarly permits the court to impose sanctions 24 on a party who fails to comply with the court’s Rules or any order of court. 25 Before dismissing an action under Fed. R. Civ. P. 41, the court must consider: (1) the 26 public interest in expeditious resolution of litigation; (2) the court’s need to manage a docket; (3) 27 the risk of prejudice to defendant; (4) public policy favoring disposition on the merits; and (5) the 28 availability of less drastic sanctions. See Applied Underwriters, 913 F.3d at 889 (noting that 2 1 these five factors “must” be analyzed before a Rule 41 involuntary dismissal) (emphasis added); 2 Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (reviewing five factors and 3 independently reviewing the record because district court did not make finding as to each factor); 4 but see Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000) (listing the same five 5 factors, but noting the court need not make explicit findings as to each) (emphasis added); Ferdik 6 v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (affirming dismissal of pro se 1983 action when 7 plaintiff did not amend caption to remove “et al” as the court directed and reiterating that an 8 explicit finding of each factor is not required by the district court). 9 10 III. ANALYSIS The undersigned considers each of the above-stated factors and concludes dismissal is 11 warranted in this case. The expeditious resolution of litigation is deemed to be in the public 12 interest, satisfying the first factor. Yourish v. California Amplifier, 191 F.3d 983, 990–91 (9th 13 Cir. 1999). Turning to the second factor, the court’s need to efficiently manage its docket cannot 14 be overstated. This court has “one of the heaviest caseloads in the nation,” and due to unfilled 15 judicial vacancies, which is further exacerbated by the Covid-19 pandemic, operates under a 16 declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 17 Emergency in the Eastern District of California. The court’s time is better spent on its other 18 matters than needlessly consumed managing a case with a recalcitrant litigant. Indeed, “trial 19 courts do not have time to waste on multiple failures by aspiring litigants to follow the rules and 20 requirements of our courts.” Pagtalunan, 291 F.3d at 644 (Trott, J., concurring in affirmance of 21 district court’s involuntary dismissal with prejudice of habeas petition where petitioner failed to 22 timely respond to court order and noting “the weight of the docket-managing factor depends upon 23 the size and load of the docket, and those in the best position to know what that is are our 24 beleaguered trial judges.”). Delays inevitably have the inherent risk that evidence will become 25 stale or witnesses' memories will fade or be unavailable and can prejudice a defendant, thereby 26 satisfying the third factor. See Sibron v. New York, 392 U.S. 40, 57 (1968). The court has 27 already attempted a less drastic option by issuing an order to show cause, which plaintiff failed to 28 respond to. To issue another order to show cause would be an act of futility, because the court’s 3 1 most recent order was returned as undeliverable. Additionally, the instant dismissal is a dismissal 2 without prejudice, which is a lesser sanction than a dismissal with prejudice, thereby addressing 3 the fifth factor. 4 Plaintiff neither filed an amended complaint nor responded to the court’s May 28, 2020 5 order to show cause why this matter should not be dismissed for his failure to prosecute this 6 action. (Doc. No. 11). More than 14 months have passed and plaintiff has taken no action to 7 prosecute this case. Further, pursuant to the court’s local rules, plaintiff was required to file a 8 change of address no later than February 16, 2021 but has failed to do so. See Local Rule 183(b). 9 After considering the factors set forth supra and binding case law, the undersigned recommends 10 dismissal, without prejudice, under Fed. R. Civ. P. 41(b) and Local Rules 110 and 183(b). 11 Accordingly, it is RECOMMENDED: 12 This case be dismissed without prejudice. 13 NOTICE TO PARTIES 14 These findings and recommendations will be submitted to the United States district judge 15 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 16 (14) days after being served with these findings and recommendations, a party may file written 17 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 18 Findings and Recommendations.” Parties are advised that failure to file objections within the 19 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 20 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 21 22 IT IS SO ORDERED. 23 Dated: May 3, 2021 24 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 25 26 27 28 4
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
