Trajan Paul Green v. R Boggust et al

Filing 34

ORDER DISMISSING ACTION FOR LACK OF PROSECUTION by Judge Jesus G. Bernal. Plaintiff's second amended complaint (Dkt. 10) and this action are dismissedwithout prejudice. Defendant Boggust's motion to dismiss (Dkt. 26) is denied asmoot. Judgment will be entered in accordance with this Order. (see document for details). (dro)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 Case No. EDCV-15-02578-JGB (KES) TRAJAN PAUL GREEN, Plaintiff, ORDER DISMISSING ACTION FOR LACK OF PROSECUTION v. R. BOGGUST, et al., Defendants. 16 17 18 19 20 21 22 23 24 25 26 27 28 Trajan Paul Green (“Plaintiff”), a prisoner in state custody, initiated this civil rights action in December 2015. It appears that he was released from custody in late 2016. Because he has failed to keep the Court apprised of his address, this action will be dismissed for lack of prosecution. I. LEGAL STANDARD “In determining whether to dismiss an action for lack of prosecution, the district court is required to weigh several factors: “(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits and (5) the availability of less drastic sanctions.” Carey v. King, 856 1 1 F.2d 1439, 1440 (9th Cir. 1988). Local Rule 41-6 provides as follows: 2 L.R. 41-6 Dismissal - Failure of Pro Se Plaintiff to Keep Court 3 Apprised of Current Address. A party proceeding pro se shall keep the 4 Court and opposing parties apprised of such party’s current address and 5 telephone number, if any, and e-mail address, if any. If mail directed 6 by the Clerk to a pro se plaintiff’s address of record is returned 7 undelivered by the Postal Service, and if, within fifteen (15) days of the 8 service date, such plaintiff fails to notify, in writing, the Court and 9 opposing parties of said plaintiff’s current address, the Court may 10 dismiss the action with or without prejudice for want of prosecution. 11 II. 12 BACKGROUND 13 Plaintiff filed his initial complaint on December 18, 2015. (Dkt. 1.) After the 14 Court dismissed his initial complaint and first amended complaint with leave to 15 amend (Dkt. 4, 7, 8), Plaintiff filed a second amended complaint on March 30, 2016. 16 (Dkt. 10.) On June 8, 2016, the Court dismissed all of Plaintiff’s claims with the 17 exception of two claims against Defendant Deputy Sheriff R. Boggust. (Dkt. 12, 15.) 18 On October 25, 2016, Defendant Boggust moved to dismiss one of these 19 claims. (Dkt. 26.) On October 26, 2016, the Court ordered Plaintiff to file a response 20 to the motion to dismiss on or before November 21, 2016. (Dkt. 28.) On November 21 18, 2016, the Court granted Plaintiff’s request for an extension until January 20, 2017 22 to file his opposition. (Dkt. 30.) In the motion requesting an extension, Plaintiff 23 indicated that he was “currently in the process of being released from prison” and 24 that he “will be homeless and need to find housing.” (Dkt. 29.) The Court’s 25 November 18 Order was returned as undeliverable because Plaintiff had been 26 “Paroled/Discharged.” (Dkt. 31.) 27 On December 8, 2016, the Court sua sponte extended the 15-day deadline in 28 Local Rule 41-6, giving Plaintiff until January 20, 2017 to notify the Court of his 2 1 current address. (Dkt. 32.) The Court admonished Plaintiff, “If Plaintiff fails to 2 timely file a notice of his current address, the Court will recommend that this action 3 be dismissed without prejudice for failure to prosecute.” (Id.) This Order too was 4 returned as undeliverable. (Dkt. 33.) As of the date of this Order, Plaintiff has not 5 provided the Court with an updated mailing address or contact information. 6 III. 7 ANALYSIS 8 In Carey, the Ninth Circuit affirmed a dismissal for lack of prosecution under 9 a local rule similar to Local Rule 41-6. In rejecting the plaintiff’s arguments that the 10 district court failed to consider less drastic sanctions and failed to determine whether 11 the plaintiff’s delay in prosecution was unreasonable or intentional, the Ninth Circuit 12 held: 13 [W]e can imagine no less drastic sanction that was available to 14 the district court. Local Rule 41(b)(2) provides that the action may be 15 dismissed without prejudice, not with prejudice. The district court could 16 not contact Carey to threaten him with some lesser sanction. An order 17 to show cause why dismissal was not warranted or an order imposing 18 sanctions would only find itself taking a round trip tour through the 19 United States mail. … Local Rule 41(b)(2)'s practical effect is merely 20 to encourage all pro se litigants, and not just pro se prisoners, to keep 21 the court abreast of their current mailing addresses, as all other litigants 22 are required to do, to enable the court to communicate with them when 23 necessary. … 24 [T]he district court, being unable to communicate with Carey, 25 could not ascertain the reasons for his complacency in pursuing his 26 case. It would be absurd to require the district court to hold a case in 27 abeyance indefinitely just because it is unable, through the plaintiff's 28 own fault, to contact the plaintiff to determine if his reasons for not 3 1 2 prosecuting his lawsuit are reasonable or not. 856 F. 2d at 1441. 3 The present case is indistinguishable from Carey. Plaintiff’s failure to keep 4 the court apprised of his address prevents the Court from ascertaining whether his 5 failure is deliberate or excusable. 6 resolution of this civil rights litigation, the court’s need to manage its docket, and the 7 risk of prejudice to Defendant Boggust, whose motion to dismiss remains pending 8 and unanswered, a dismissal without prejudice is appropriate. Given the public’s interest in expeditious 9 IV. 10 CONCLUSION 11 Plaintiff’s second amended complaint (Dkt. 10) and this action are dismissed 12 without prejudice. Defendant Boggust’s motion to dismiss (Dkt. 26) is denied as 13 moot. Judgment will be entered in accordance with this Order. 14 15 DATED: February 2, 2017 16 ____________________________________ JESUS G. BERNAL UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 Presented by: ___________________________ KAREN E. SCOTT United States Magistrate Judge 23 24 25 26 27 28 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?