Walter David Gray v. M Taber et al

Filing 81

MEMORANDUM AND ORDER RE DISMISSAL OF ACTION FOR FAILURE TO PROSECUTE by Judge Virginia A. Phillips. It is THEREFORE ORDERED that this action is dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b), Local Rule 41-6 and the Court s inherent power to achieve the orderly and expeditious disposition of cases by dismissing actions for failure to prosecute. See also Link v. Wabash Railroad Co., 370 U.S. 626, 629-30 (1962). LET JUDGMENT BE ENTERED ACCORDINGLY. (SEE ORDER FOR FURTHER DETAILS) (gr)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

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WALTER DAVID GRAY,

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Plaintiff,
v.
M. TABER, et al.,
Defendants.

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No. CV 11-00190-VAP (VBK)
MEMORANDUM AND ORDER RE DISMISSAL
OF ACTION FOR FAILURE TO
PROSECUTE

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Pro se Plaintiff Walter David Gray (hereinafter referred to as

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“Plaintiff”) filed a civil rights complaint pursuant to 42 U.S.C.

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§1983 on January 6, 2011, pursuant to the Court’s Order re Leave to

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File Action Without Prepayment of Full Filing Fee.

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On March 28, 2011, the Court issued an Order directing service of

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the Summons and Complaint on Defendants M. Taber, S. Lopez, Joseph

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Branch and Ardrick Elmore.

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On September 29, 2011, Defendants Joseph Branch, Ardrick Elmore,

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S. Lopez and M. Taber filed “Defendants’ Notice of Motion and Motion

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to Dismiss Complaint;” “Declaration of Appeals Coordinator in Support

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of Defendants’ Motion to Dismiss Plaintiff’s Complaint;” “Declaration

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of D. Foston in Support of Defendants’ Motion to Dismiss Plaintiff’s

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Complaint;” “Defendants’ Memorandum of Points and Authorities in

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Support of Defendants’ Motion to Dismiss Complaint;” “Notice to Pro Se

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Inmate for Opposing Defendants’ Unenumerated 12(b) Motion under Wyatt

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V. Terhune;” “[Proposed] Order Dismissing Complaint.”

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On October 4, 2011, the Court issued a Minute Order regarding

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Plaintiff’s obligation in responding to Defendants’ Motion under Wyatt

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v. Terhune, 314 F.3d 1108, 1119 (9th Cir. 2003).

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On November 10, 2011, Plaintiff filed a “Motion for Extension of
Time to Amend Complaint.”
On

November

28,

2011,

Plaintiff

filed

an

“Opposition

to

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Defendants’ Motion to Dismiss Complaint” and “Declaration of Walter

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David Gray re Objections/Opposition.”

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On May 17, 2012, a Report and Recommendation of United States

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Magistrate Judge was issued granting Defendants’ Motion to Dismiss on

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the grounds that Plaintiff had not fully exhausted his administrative

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remedies; Plaintiff’s claims of constitutional violations based on his

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arrest and incarceration were barred by

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rule; Plaintiff’s supervisory claim was vague and conclusory; and

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Plaintiff failed to state an excessive force claim. (Docket No. 76.)

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The Court docket lists Plaintiff’s address as CIM RCE Palm Hall

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the favorable termination

West - ADA Cell 121, P. O. Box 441, Chino, California 91708.

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On May 25, 2012, the Court was informed that Plaintiff is no

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longer in custody. (See, “Return to Sender - Inmate Paroled,” Docket

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Nos. 77 and 78.)

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On June 4, 2012, the Court issued an Order to Show Cause re

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Dismissal requiring Plaintiff to notify the Court of his current

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address.

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Central District Local Rule 41-6 provides:
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“DISMISSAL - FAILURE OF PRO SE PLAINTIFF TO KEEP COURT

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APPRISED OF CURRENT ADDRESS - A party appearing pro se shall

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keep the Court apprised of such party’s current address and

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telephone number, if any, and e-mail address, if any.

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mail directed by the Clerk to a pro se Plaintiff’s address

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of record is returned undelivered by the Post Office, and if

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within fifteen (15) days of the service date, such Plaintiff

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fails to notify, in writing, the Court and opposing parties

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of said Plaintiff’s current address, the Court may dismiss

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the

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If

prosecution.”

action

with

or

without

prejudice

for

want

of

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Plaintiff was ordered to respond within 15 days of the date of

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the Order.

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Court of his current address, the Court would recommend the action be

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dismissed with prejudice. (See Docket No. 79.)

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Plaintiff was advised that if he failed to apprise the

On June 8, 2012, the mail addressed to Plaintiff was returned
with a notation “Paroled.” (See Docket No. 80.)

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Here, Plaintiff has failed to notify the Court of his current

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address within 15 days of the service date of the undelivered Order to

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Show Cause described above, as required by Local Rule 41-6.

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failure to keep the Court apprised of his current address renders this

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case indistinguishable from Carey v. King, 856 F.2d 1439, 1441 (9th

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Cir. 1988).

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case for failure to prosecute, the Ninth Circuit observed that “[I]t

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would be absurd to require the District Court to hold a case in

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abeyance

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Plaintiff’s own fault, to contact the plaintiff to determine if his

His

There, in affirming the District Court’s dismissal of a

indefinitely

just

because

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it

is

unable,

through

the

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reasons for not prosecuting his lawsuit are reasonable or not.”

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DISCUSSION

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It is well established that a District Court has authority to

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dismiss an action because of failure to prosecute or to comply with

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Court Orders.

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Co., 370 U.S. 626, 629-30, 82 S.Ct. 1386 (1962), (authority to dismiss

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for lack of prosecution necessary to prevent undue delay in disposing

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of pending cases and avoid congestion in Courts’ calendars); Ferdik v.

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Bonzelet, 936 F.2d 1258, 1260 (9th Cir. 1992), (authority to dismiss

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action for failure to comply with any order of the court).

See, Fed. R. Civ. P. 41(b); Link v. Wabash Railroad

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In determining whether to dismiss a case for failure to prosecute

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or to comply with court orders, a court should consider five factors:

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(1) the public interest in expeditious resolution of litigation; (2)

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the court’s need to manage its docket; (3) the risk of prejudice to

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defendants; (4) the public policy favoring disposition of cases on

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their merits; and (5) the availability of less drastic sanctions.

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Re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994)(failure to prosecute);

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Ferdik, 936 F.2d at 1260-61 (9th Cir. 1992)(failure to comply with

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court orders).

In

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In the instant action, the first two factors -- public interest

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in expeditious resolution of litigation and the need to manage the

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Court’s docket -- weigh in favor of dismissal.

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to comply with the Court’s Orders requiring Plaintiff to notify the

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Court of his address, despite being warned of the consequences and

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granted sufficient time in which to do so.

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hinders the Court’s ability to move this case towards disposition, and

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indicates that Plaintiff does not intend to litigate this action
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Plaintiff has failed

Plaintiff’s conduct

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diligently.

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The third factor -- prejudice to defendants -- also weighs in

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favor

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defendants arises when a plaintiff unreasonably delays prosecution of

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an action.

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presumption is unwarranted in this case.

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of

dismissal.

A

rebuttable

presumption

Eisen, 31 F.3d at 1452-53.

of

prejudice

to

Nothing suggests that such a

The fourth factor -- public policy in favor of deciding cases on

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their merits -- ordinarily weighs against dismissal.

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a

plaintiff’s

responsibility

to

move

towards

However, it is

disposition

at

a

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reasonable pace, and avoid dilatory and evasive tactics.

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Morgan Stanley, 942 F.2d 648, 652 (9th Cir. 1991).

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discharged this responsibility, despite having been granted sufficient

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time in which to do so.

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favoring resolution of disputes on the merits does not outweigh

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Plaintiff’s failure to obey court orders or to file responsive

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documents within the time granted.

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Morris v.

Plaintiff has not

In these circumstances, the public policy

The fifth factor -- availability of less drastic sanctions --

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also weighs in favor of dismissal.

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towards disposition without Plaintiff’s compliance with court orders

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or participation in its litigation.

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either unwilling or unable to comply with court orders by filing

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responsive documents.

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The Court cannot move the case

Plaintiff has shown that he is

Under these circumstances, dismissal for failure to prosecute is

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appropriate.

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Plaintiff has been notified that dismissal is imminent.

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Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1523 (9th Cir.

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1990).

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dismissal in the Court’s Orders.

Such a dismissal should not be entered unless the
See, West

However, Plaintiff was warned about the possibility of

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It is THEREFORE ORDERED that this action is dismissed with

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prejudice pursuant to Federal Rule of Civil Procedure 41(b), Local

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Rule 41-6 and the Court’s inherent power to achieve the orderly and

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expeditious disposition of cases by dismissing actions for failure to

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prosecute. See also Link v. Wabash Railroad Co., 370 U.S. 626, 629-30

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(1962).

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED: July 2, 2012
VIRGINIA A. PHILLIPS
UNITED STATES DISTRICT JUDGE

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Presented on
June 25, 2012 by:

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/s/
VICTOR B. KENTON
UNITED STATES MAGISTRATE JUDGE

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