Martinez v. James D. Hartley, et al
Filing
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FINDINGS and RECOMMENDATIONS for Dismissal of Plaintiff's Action for Failure to Prosecute, signed by Magistrate Judge Michael J. Seng on 11/29/12. Referred to Judge Ishii; Objections due within 14-days. (Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MANUEL MARTINEZ
1:12-cv-0561-AWI-MJS (PC)
Plaintiff,
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FINDINGS AND RECOMMENDATIONS
FOR DISMISSAL OF PLAINTIFF’S
ACTION FOR FAILURE TO
PROSECUTE
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v.
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(ECF No. 10)
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JAMES D. HARTLEY, et al.,
OBJECTIONS DUE WITHIN
FOURTEEN DAYS
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Defendants.
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Plaintiff Manuel Martinez (“Plaintiff”) is a state prisoner proceeding pro se and in
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forma pauperis in this civil rights actions pursuant to 42 U.S.C. § 1983.
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Plaintiff initiated this action on February 21, 2012. (ECF No. 2.) On May 7, 2012,
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the Court’s April 27, 2012 order granting Plaintiff’s motion to proceed in forma pauperis
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was returned by the U.S. Postal Service as undeliverable to Plaintiff. Over 63 days
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passed without Plaintiff having provided the Court with a new address or other response.
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On July 3, 2012, the Court issued an order to show cause giving Plaintiff an
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opportunity to update his address. (ECF No. 10.) Plaintiff was to respond by July 20,
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2012.
(Id.) July 20, 2012, has passed without Plaintiff complying with or otherwise
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responding to the Court’s Order. The Court’s July 3, 2012 Order also was returned as
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undeliverable by the U.S. Postal Service.
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Pursuant to Local Rule 183(b), a party appearing in propria persona is required to
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keep the Court apprised of his or her current address at all times. Local Rule 183(b)
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provides, in pertinent part:
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If mail directed to a plaintiff in propria persona by the Clerk is
returned by the U.S. Postal Service, and if such plaintiff fails
to notify the Court and opposing parties within sixty-three (63)
days thereafter of a current address, the Court may dismiss
the action without prejudice for failure to prosecute.
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In the instant case, over 63 days have passed since Plaintiff's mail was returned, and he
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has not notified the Court of a current address.
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Local Rule 110 provides that “failure of counsel or of a party to comply with these
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Rules or with any order of the Court may be grounds for imposition by the Court of any
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and all sanctions . . . within the inherent power of the Court.” District courts have the
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inherent power to control their dockets and “in the exercise of that power, they may
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impose sanctions including, where appropriate . . . dismissal of a case.” Thompson v.
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Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with
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prejudice, based on a party’s failure to prosecute an action, failure to obey a court order,
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or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th
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Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d
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1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring
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amendment of a complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988)
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(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)
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(dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421,
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1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local
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rules).
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In determining whether to dismiss an action for lack of prosecution, failure to obey
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a court order, or failure to comply with local rules, the Court must consider several factors:
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(1) the 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 favoring
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disposition of cases on their merits; and (5) the availability of less drastic alternatives.
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Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130;
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Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.
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In the instant case, the Court finds that the public’s interest in expeditiously
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resolving this litigation and the Court’s interest in managing its docket weigh in favor of
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dismissal. The third factor, risk of prejudice to defendants, also weighs in favor of
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dismissal, since a presumption of injury arises from the occurrence of unreasonable delay
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in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The
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fourth factor -- public policy favoring disposition of cases on their merits -- is greatly
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outweighed by the factors in favor of dismissal discussed herein. Finally, a court’s
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warning to a party that his failure to obey the court’s order will result in dismissal satisfies
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the “consideration of alternatives” requirement. Ferdik v. Bonzelet, 963 F.2d at 1262;
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Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s order expressly
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stated: “Failure to meet this deadline will result in dismissal of this action.” (ECF No. 10.)
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Thus, Plaintiff had adequate warning that dismissal would result from his noncompliance
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with the Court’s order. The inability to reach Plaintiff via the U.S. mail effectively deprives
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the Court of any other and less drastic alternative.
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Based on the foregoing, the Court RECOMMENDS that this action be DISMISSED
based on Plaintiff’s failure to obey a court order.
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These Findings and Recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1).
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Within fourteen (14) days after being served with these Findings and Recommendations,
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any party may file written objections with the Court and serve a copy on all parties. Such
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a document should be captioned "Objections to Magistrate Judge's Findings and
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Recommendations." The parties are advised that failure to file objections within the
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specified time may waive the right to appeal the District Court's order. Martinez v. Y1 st,
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951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:
ci4d6
November 29, 2012
/s/
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Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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