John Huerta v. The State of California et al

Filing 16

ORDER DISMISSING COMPLAINT WITHOUT PREJUDICE FOR FAILURE TO PROSECUTE by Judge John A. Kronstadt, re Complaint (Prisoner Civil Rights) 1 . IT IS ORDERED that judgment be entered dismissing the case without prejudice for failure to prosecute. Case Terminated. Made JS-6. (mp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JOHN HUERTA,

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Plaintiff,

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v.

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THE STATE OF CALIFORNIA,
OFFICER G. BETANCOURT,
Defendants.

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NO. SACV 16-01938-JAK (AGR)

ORDER DISMISSING
COMPLAINT WITHOUT
PREJUDICE FOR FAILURE TO
PROSECUTE

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On October 25, 2016, Plaintiff filed a civil rights complaint. On February

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28, 2017, Defendant filed a status report. Defendant notified the court that

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Plaintiff had been released from Orange County jail on December 19, 2016 and

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that Defendant had been unable to conduct discovery without a current address

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for Plaintiff. (Dkt. No. 11.) Plaintiff failed to file a status report by March 1, 2017

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as ordered by the court. (Dkt. No. 9.)

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On March 16, 2017, the Magistrate Judge issued an order to show cause

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by April 17, 2017, why this case should not be dismissed for failure to prosecute.

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The order provided that the filing of a status report by April 17, 2017 would be

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deemed compliance with the order to show cause, and warned that failure to file

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a timely status report may result in dismissal. (Dkt. No. 12.)

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On April 3, 2017, the postal service returned the order to show cause as

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undeliverable and unable to forward to Plaintiff. (Dkt. No. 13.) Plaintiff has not

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filed a notice of change of address or status report, and has not otherwise

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responded to the order to show cause.

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A party proceeding pro se is required to keep the court apprised of his or

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her current address. Local Rule 41-6. “If mail directed by the Clerk to a pro se

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plaintiff’s address of record is returned undelivered by the Postal Service, and if,

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within fifteen (15) days of the service date, such plaintiff fails to notify, in writing,

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the Court and opposing parties of said plaintiff’s current address, the Court may

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dismiss the action with or without prejudice for want of prosecution.” Petitioner

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has failed to file a notice of change of address, and his current address is

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unknown.

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It is well established that a district court has authority to dismiss a plaintiff’s

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action because of failure to prosecute or to comply with court orders. See Fed.

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R. Civ. P. 41(b); Link v. Wabash Railroad Co., 370 U.S. 626, 629-30, 82 S. Ct.

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1386, 8 L. Ed. 2d 734 (1962) (court’s authority to dismiss for lack of prosecution

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is necessary to prevent undue delays in the disposition of pending cases and

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avoid congestion in district court calendars); Ferdik v. Bonzelet, 963 F.2d 1258,

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1260 (9th Cir. 1992) (district court may dismiss action for failure to comply with

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any order of the court).

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In determining whether to dismiss a case for failure to prosecute or failure

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to comply with court orders, a district court should consider five factors: (1) the

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public’s interest in expeditious resolution of litigation; (2) the court’s need to

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manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy

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favoring the disposition of cases on their merits; and (5) the availability of less

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drastic sanctions. See In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994) (failure to

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prosecute); Ferdik, 963 F.2d at 1260-61 (failure to comply with court orders).

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The first two factors – the public’s interest in expeditious resolution of

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litigation and the court’s need to manage its docket – weigh in favor of dismissal.

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Plaintiff has failed to file a status report and has failed to respond to the court’s

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order to show cause why this action should not be dismissed for failure to

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prosecute. Plaintiff has failed to file a notice of change of address and has

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thereby rendered it impossible for Defendant to conduct discovery. Plaintiff’s

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conduct hinders the court’s ability to move this case toward disposition, and

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indicates that Plaintiff does not intend to litigate this action diligently.
The third factor – prejudice to defendants – also weighs in favor of

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dismissal. A rebuttable presumption of prejudice to defendants arises when there

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is a failure to prosecute diligently. Eisen, 31 F.3d at 1452-53. That presumption

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may be rebutted when a plaintiff proffers an excuse for delay. Plaintiff has failed

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to come forward with any excuse or reason for delay.

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The fourth factor – public policy in favor of deciding cases on their merits –

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weighs against dismissal. It is, however, a plaintiff’s responsibility to move a case

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towards a disposition at a reasonable pace and to avoid dilatory tactics. See

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Morris v. Morgan Stanley Co., 942 F.2d 648, 652 (9th Cir. 1991). Plaintiff has not

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discharged this responsibility. In these circumstances, the public policy favoring

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resolution of disputes on the merits does not outweigh Plaintiff’s failure to notify

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the court of his change of address or respond to orders of the court.

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The fifth factor – availability of less drastic sanctions – weighs in favor of

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dismissal. The court attempted to avoid dismissal by reminding Plaintiff of his

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obligation to file a status report and expressly warned Plaintiff that failure to

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comply may result in the dismissal of the action. The mail was returned as

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undeliverable because Plaintiff has failed to keep the court apprised of his current

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address. See Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988) (“It would be
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absurd to require the district court to hold a case in abeyance indefinitely just

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because it is unable, through the plaintiff’s own fault, to contact the plaintiff to

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determine if his reasons for not prosecuting his lawsuit are reasonable or not.”).

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Taking all of the above factors into account, dismissal for failure to

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prosecute is appropriate. Such a dismissal, however, should not be entered

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unless Plaintiff has been notified that dismissal is imminent. In this case, the

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order to show cause cautioned Plaintiff about the possibility of dismissal. Absent

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a current address for Plaintiff, there is nothing more the court can do.

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IT IS ORDERED that judgment be entered dismissing the case without

prejudice for failure to prosecute.

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DATED: April 21, 2017

JOHN A. KRONSTADT
United States District Judge

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