Sims v. Guirbino

Filing 12

ORDER DISMISSING 1 Action, without Prejudice, for Failure to Prosecute signed by Magistrate Judge Gerald B. Cohn on 9/6/2011. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ROBERT SIMS,

Case: No. 1:09-cv-01850-GBC (PC)

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ORDER DISMISSING ACTION, WITHOUT
PREJUDICE, FAILURE TO PROSECUTE

Plaintiff,
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v.

(Doc. 11)

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GEORGE J. GUIRBINO,
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Defendant.
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Robert Sims (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this

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civil rights action filed pursuant to 42 U.S.C. § 1983. On October 21, 2009, Plaintiff filed his

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original complaint. (Doc. 1). On June 8, 2011, the Court issued an order to show cause as to why

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the action should not be dismissed based on failure to exhaust administrative remedies. (Doc. 11).

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On June 16, 2011, the order was returned as undeliverable and the Court sent out a notice that the

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change of address was due by August 25, 2011.

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A pro se plaintiff has an affirmative duty to keep the court and opposing parties apprised of

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his or her address. Local Rule 182(f). If the plaintiff moves and fails to file a notice of change of

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address, service of court orders at the plaintiff's prior address shall constitute effective notice. Id.

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If mail directed to the plaintiff is returned by the U.S. Postal Service as undeliverable, the court will

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not attempt to re-mail it. If the address is not updated within sixty-three days of the mail being

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returned, the action is to be dismissed for failure to prosecute. Local Rule 183(b).

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In determining whether to dismiss this action for failure to comply with the directives set

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forth in its order, “the Court must weigh the following factors: (1) the public’s interest in

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expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of

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prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the

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public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639,

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642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).

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‘The public’s interest in expeditious resolution of litigation always favors dismissal.’

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Pagtalunan v. Galaza, 291 F.3d 639, 642 (quoting Yourish v. California Amplifier, 191 F.3d

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983, 990 (9th Cir. 1999)). Plaintiff is obligated to comply with the Local Rules and was

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informed via court order regarding the need reply to the order to show cause. The Court’s effort

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was met with silence from Plaintiff, and the Court cannot effectively manage its docket if a party

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ceases litigating the case. Thus, both the first and second factors weigh in favor of dismissal.

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Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in

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and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently

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increases the risk that witnesses’ memories will fade and evidence will become stale,” id., and it

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is Plaintiff’s failure to comply with the Local Rules and the Court’s order that is causing delay.

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Therefore, the third factor weight in favor of dismissal.

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As for the availability of lesser sanctions, at this stage in the proceedings there is little

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available to the Court which would constitute a satisfactory lesser sanction while protecting the

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Court from further unnecessary expenditure of its scare resources. Plaintiff is proceeding in

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forma pauperis in this action, making monetary sanctions of little use, and given this stage of the

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proceedings, the preclusion of evidence or witnesses is likely to have no effect given that

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Plaintiff has ceased litigating his case.

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Finally, because public policy favors disposition on the merits, this factor usually weighs

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against dismissal. Id. at 643. However, “this factor lends little support to a party whose

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responsibility it is to move a case toward disposition on the merits but whose conduct impedes

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progress in that direction,” In re Phenylpropanolamine (PPA) Products Liability Litigation, 460

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F.3d 1217, 1228 (9th Cir. 2006) (internal quotations and citations omitted), as is the case here.
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In summary, Plaintiff filed this action but is no longer prosecuting it. More than two

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months have passed since the Court originally ordered Plaintiff to respond to its order to show

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cause. (Docs 11).

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Accordingly, the Court finds that dismissal is the appropriate sanction and ORDERS that
this action be DISMISSED, WITHOUT PREJUDICE, for failure to prosecute.

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IT IS SO ORDERED.

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Dated:
0jh02o

September 6, 2011
UNITED STATES MAGISTRATE JUDGE

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