Ward v. Mims, et al.

Filing 18

FINDINGS and RECOMMENDATIONS Recommending Dismissal of This Case signed by Magistrate Judge Gary S. Austin on 3/7/2013. Objections to F&R's due within fifteen (15) days of service.(Martinez, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JARED M. WARD,
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Plaintiffs,
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v.
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MARGARET MIMS, et al,
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Defendants.
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_____________________________________ )

1:11-cv-01737 LJO GSA
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF
THIS CASE

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I.

INTRODUCTION
Plaintiff Jared M. Ward filed his civil rights complaint on October 17, 2011. (Doc. 1).

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On December 18, 2012, the matter was reassigned to District Judge Lawrence J. O’Neill and

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Magistrate Judge Gary S. Austin. (Docs. 12-14.)

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On December 28, 2012, the December 18th order that had been properly served on

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Plaintiff at Atascadero State Hospital, Post Office Box 7001, Atascadero, California 93423-7001,

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was returned by the postal service marked “Undeliverable - Attempted Not Known.” (Docs. 12

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and 16).

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On January 2, 2013, a second piece of mail addressed to Plaintiff at Atascadero was
returned by the postal service marked “Undeliverable - Attempted Not Known.”

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On January 4, 2013, this Court issued an Order to Show Cause Why this Case Should Not

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be Dismissed for Plaintiff’s failure to keep the Court apprised of his address pursuant to Local

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Rule 182(f). (Doc. 17). Pursuant to Local Rule 183 (b), if an address is not updated within

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sixty days of the mail being returned, the action will be dismissed for failure to prosecute. Local

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Rule 183(b). On January 14, 2013, this order addressed to Plaintiff at Atascadero was also

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returned by the postal service marked “Undeliverable, No Such Number - Unable to Forward.”

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In light of the above, the Court recommends dismissal of this action.

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II.

DISCUSSION

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Local Rule 110 provides that "failure of counsel or of a party to comply with these Local

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Rules or with any order of the Court may be grounds for the imposition by the Court of any and

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all sanctions . . . within the inherent power of the Court." District courts have the inherent power

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to control their dockets and "in the exercise of that power, they may impose sanctions including,

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where appropriate . . . dismissal of a case." Thompson v. Housing Auth., 782 F.2d 829, 831 (9th

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Cir. 1986). A court may dismiss an action, with prejudice, based on a party's failure to prosecute

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an action, failure to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v.

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Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik

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v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an

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order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir.

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1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court

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apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal

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for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir.

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1986) (dismissal for failure to lack of prosecution and failure to comply with local rules).

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In determining whether to dismiss an action for lack of prosecution, failure to obey a

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court order, or failure to comply with local rules, the court must consider several factors: (1) the

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public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket;

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(3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on

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their merits; and (5) the availability of less drastic alternatives. Thompson v Housing Auth., 782

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F.2d at 831; Henderson v. Duncan, 779 F.2d at 1423-24; Malone v. U.S. Postal Service, 833 F.2d

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at 130; Ferdik, 963 F.2d at 1260-61; Ghazali v. Moran, 46 F.3d at 53.

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In the instant case, the Court finds that the public's interest in expeditiously resolving this

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litigation and the Court's interest in managing the docket weigh in favor of dismissal. Plaintiff

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has failed to comply with Local Rule 182(f) that requires Plaintiff to keep the Court apprised of

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his address so that he may participate in this litigation. More than sixty days have passed since

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the first order was returned to the Court as undeliverable. (Doc. 12). In accordance with this

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Court’s Local Rules, the matter should be dismissed. Local Rule 183(b)

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The third factor, risk of prejudice to defendants, also weighs in favor of dismissal, since a

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presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action.

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Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor, the public policy

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favoring the disposition of cases on the merits is also met. While the public’s interest certainly

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favors resolution of cases on the merits, the public has an equal, if not greater interest in ensuring

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confidence in our judicial system and in the speedy and fair administration of justice. Here, there

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will be no resolution of this case given Plaintiff’s failure to advise the Court of his new address.

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Finally, a court's warning to a party that his failure to obey the court's order will result in

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dismissal satisfies the "consideration of alternatives" requirement. Ferdik v. Bonzelet, 963 F.2d

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at 1262; Malone v. U.S. Postal Service, 833 at 132-33; Henderson v. Duncan, 779 F.2d at 1424.

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In this case, the Court's order expressly stated, “In the event Plaintiff fails to show cause for his

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failure, this Court will recommend dismissal of the action in its entirety.” (Doc. 17, pg. 3). Thus,

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Plaintiff had adequate warning that dismissal would result from noncompliance with the Court's

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order.

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III.

CONCLUSION AND RECOMMENDATION

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Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed based

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on Plaintiff's failure to obey the Court's order of January 4, 2013, and a failure to prosecute the

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action.

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These findings and recommendations are submitted to the United States District Judge

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Lawrence J. O’Neill, pursuant to the provisions of Title 28 of the United States Code section

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636(b)(l). Within fifteen (15) days after being served with these findings and recommendations,

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Plaintiff may file written objections with the Court. Such a document should be captioned

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"Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that

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failure to file objections within the specified time may waive the right to appeal the District

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Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
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March 7, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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