Albert Lee Mitchell v. Brian Birkholz

Filing 11

ORDER DISMISSING ACTIONS by Judge John W. Holcomb. Both habeas actions are DISMISSED without prejudice under Rule 41 and the parallel Local Rule. (see document for further details) Case Terminated. Made JS-6. (hr)

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1 JS-6 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE CENTRAL DISTRICT OF CALIFORNIA 10 ALBERT MITCHELL, 11 12 Petitioner, v. 13 BRYAN BIRKHOLZ, Warden, 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respondent. Case Nos. CV 23-10000 JWH (MRW) CV 24-1415 JWH (MRW) ORDER DISMISSING ACTIONS 1 The Court dismisses these duplicative habeas actions based 2 upon the failure of a pro se litigant to follow court orders or to update 3 his address with the Court. 4 1. At the time of the commencement of these actions, 5 Petitioner Mitchell was an inmate at the federal prison facility in 6 Lompoc. He filed two habeas actions in this judicial district in late 7 2023 and early 2024. Both actions presented similar challenges to the 8 existence of a detainer in Petitioner’s prison record and complained 9 about retaliation from prison staff. 10 2. Following the commencement of the 2023 Action, 11 Magistrate Judge Wilner issued a case management order that 12 specifically informed Petitioner of his obligation under L.R. 41-6 to 13 “keep the Court informed of a correct mailing address” for him or risk 14 dismissal of the action. (2023 Action, Docket # 6 at 3.) 15 3. The government moved to dismiss the 2023 Action on 16 various grounds. (2023 Action, Docket # 8.) While that motion was 17 pending, Petitioner initiated the second habeas action. (2024 Action, 18 Docket # 1.) 19 4. Magistrate Judge Wilner issued an order to show cause 20 why the 2024 Action should not be dismissed as duplicative of the 21 2023 Action. (2024 Action, Docket # 4.) That OSC (and other case- 22 commencing documents) were addressed to a non-custody address in 23 San Francisco per Petitioner’s change of address request. (2023 24 Action, Docket # 10.) The U.S. Postal Service returned those items as 25 undeliverable. (2024 Action, Docket # 6-9.) 26 27 5. In March 2024, Judge Wilner issued an OSC in both habeas actions. The OSC noted the returned mail and duplicative 28 2 1 case filings. (2024 Action, Docket # 10.) Additionally, Judge Wilner 2 informed the parties that he confirmed via the BOP’s inmate locator 3 website that Petitioner was no longer incarcerated at Lompoc. The 4 magistrate judge ordered Petitioner to explain why the actions were 5 not moot and what habeas relief this district court could properly give 6 him given his release from custody. 7 6. Petitioner failed to file any response to that OSC in either 8 of the pending actions. The Court and the government therefore have 9 no way of contacting Petitioner to advance this case. 10 7. Rule 41(b) of the Federal Rules of Civil Procedure provides that 11 if a plaintiff “fails to prosecute or to comply with these rules or a court 12 order, a defendant may move to dismiss the action or any claim against it.” 13 Dismissal also may be ordered by the Court sua sponte. Link v. Wabash 14 R.R., 370 U.S. 626, 629-30 (1962). Dismissal of a civil action under Rule 41 15 may be appropriate to advance the public’s interest in the expeditious 16 resolution of litigation, the court’s need to manage its docket, and to avoid 17 the risk of prejudice to defendants. Omstead v. Dell, Inc., 594 F. 3d 1081, 18 1084 (9th Cir. 2010). Additionally, a court should consider the public policy 19 favoring disposition of cases on their merits and the availability of less 20 drastic alternatives in its evaluation. Carey v. King, 856 F.2d 1439, 1440 21 (9th Cir. 1988). 22 8. 23 A party proceeding pro se shall keep the Court and opposing 24 parties apprised of such party’s current address and 25 telephone number[.] If mail directed by the Clerk to a pro 26 se plaintiff’s address of record is returned undelivered by 27 the Postal Service, and if, within fifteen (15) days of the Additionally, L.R. 41-6 provides in pertinent part: 28 3 1 service date, such plaintiff fails to notify, in writing, the 2 Court and opposing parties of said plaintiff’s current 3 address, the Court may dismiss the action with or without 4 prejudice for want of prosecution. 5 The dismissal of an action based on a litigant’s failure to inform a 6 district court of his or her address is reviewed for abuse of discretion. 7 Carey, 856 F.2d at 1440; Hickman v. County of Butte, 586 F. App’x 8 285 (9th Cir. 2014) (same). 9 9. In the present action, the Court concludes that dismissal is 10 appropriate. Petitioner failed to respond to a direct instruction from 11 the magistrate judge to explain the basis for his duplicative habeas 12 actions. Moreover, Petitioner failed to provide the Court with up-to- 13 date contact information following his release from prison. As a 14 result, an order of this Court and other documents have been 15 returned as undeliverable. The magistrate judge previously ordered 16 Plaintiff to update his address with the Court as required by 17 L.R. 41-6 if he was released from custody. Plaintiff’s failure to do so 18 demonstrates that he has no interest in advancing the action here. 19 10. By contrast, the Court, the government, and the public 20 have a strong interest in terminating this action. This is particularly 21 true given that Petitioner effectively chose to abandon both cases by 22 failing to update this Court with his current whereabouts, thereby 23 preventing any feasible advancement of either habeas action. The 24 Court finds that dismissal is appropriate under Rule 41(b) and 25 L.R. 41-6. Furthermore, because Plaintiff is a pro se litigant who did 26 not abide by the Local Rules or the Court’s previous order, no 27 28 4 1 sanction short of dismissal will be effective in moving this case 2 forward. Carey, 856 F.2d at 1440. 3 4 5 11. Therefore, both habeas actions are DISMISSED without prejudice under Rule 41 and the parallel Local Rule. IT IS SO ORDERED. 6 7 8 Dated: __________________ _______________________________ HON. JOHN W. HOLCOMB U.S. DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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