Harris v. Chan et al

Filing 11

ORDER DISMISSING CASE without prejudice, signed by Magistrate Judge Jennifer L. Thurston on 11/16/2012. CASE CLOSED(Martin-Gill, S)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HENRY EUGENE HARRIS,

Case No. 1:12-cv-00965 JLT (PC)

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Plaintiff,

ORDER DISMISSING ACTION
WITHOUT PREJUDICE FOR FAILURE
TO KEEP COURT APPRISED OF
CURRENT ADDRESSS AND FOR
FAILURE TO PROSECUTE

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vs.
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SGT. P. CHAN, et al,
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Defendants.
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This matter was transferred to the Eastern District of California on June 14, 2012. (Doc.

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4). Before the case was transferred, on June 4, 2012, Plaintiff was informed that his application

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to proceed in forma pauperis was deficient. (Doc. 3). He was ordered to respond to the notice

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within 30 days or his matter would be dismissed; he did not. (Doc. 3).

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On July 11, 2012, this Court ordered Plaintiff to show cause within 14 days why his action

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should not be dismissed for failure to prosecute the action and follow the Court’s Order. (Doc.

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7). Additionally, the Court ordered Plaintiff to pay the filing fee in full or submit a complete

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application to proceed in forma pauperis. (Doc. 7). However, the Court’s order to show cause

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was returned as “undeliverable, out to medical.” Oddly, Plaintiff did receive the Court’s Order re

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Consent that was served approximately three weeks later on July 30, 2012, as he recently signed

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and returned the Order re Consent to the Court. (Docs. 8 and 9). The Court ordered Plaintiff to

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show cause by September 4, 2012 why this action should not be dismissed due to his failure to

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prosecute this action and follow the Court’s Order. (Doc. 10) However, this order was returned

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as “Undeliverable, Not at this Institution” on September 28, 2012. For the reasons set forth

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below, Plaintiff’s matter is dismissed.

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I.

Discussion and Analysis

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“District courts have inherent power to control their dockets,” and in exercising that

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power, a court may impose sanctions including dismissal of an action. Thompson v. Housing

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Authority of Los Angeles, 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 or failure to obey a court order, or

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failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9 th Cir. 2995)

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(dismissal for failure to comply with local rules); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th

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Cir. 1992) (dismissal for failure to comply with an order requiring amendment of complaint);

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Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply

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with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for

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failure to prosecute and to comply with local rules).

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In determining whether to dismiss an action for failure to prosecute, failure to obey a court

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order, or failure to comply with the Local Rules, the Court must consider several factors,

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including: “(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 sanctions.” Henderson,

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779 F.2d at 1423-24; see also Ferdik, 963 F.2d at 1260-61; Thomspon, 782 F.2d at 831.

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In the case at hand, the public’s interest in expeditiously resolving this litigation and the

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Court’s interest in managing the docket weigh in favor of dismissal. The risk of prejudice to the

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defendants also weighs in favor of dismissal, since a presumption of injury arises from the

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occurrence of unreasonable delay in prosecution of an action. See Anderson v. Air West, 542

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F.2d 522, 524 (9th Cir. 1976). The Court will not, and cannot, hold the case in abeyance because

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Plaintiff’s fails to notify the Court of his current address.
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Pursuant to Local Rule 183(b), a party appearing in propria persona such as Plaintiff is

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required to keep the Court apprised of his current address at all times. Specifically, Local Rule

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183(b) provides:

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A party appearing in propria persona shall keep the Court and opposing parties
advised as to his or her current address. 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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Nearly 75 days have elapsed since Plaintiff’s mail was returned as undeliverable.

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Notably, the Court alerted Plaintiff of the consequences for failure to comply with the

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Local Rules and the Court’s orders. (Doc. 6 at 5) The Court’s informational order explained

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Plaintiff’s duty to make the Court aware of any address changes and provided a change of address

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form. Id. In addition, the Order warned Plaintiff that if mail directed to him is returned as

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undeliverable, and he does not update his address with the Court within sixty days of the mail

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being returned, the action will be dismissed for failure to prosecute and cited Local Rule 183(b).

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Id.

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Thus, Plaintiff had adequate warning his matter would be dismissed if he failed to comply

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with the Court’s order or its Local Rules. Moreover, no lesser sanction is feasible given the

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Court’s inability to communicate with Plaintiff.

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Accordingly, pursuant to Local Rule 183(b), IT IS HEREBY ORDERED that:

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1. The action is DISMISSED without prejudice; and
2. The Clerk of the Court is directed to close the case.
9j7khijed

IT IS SO ORDERED.

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Dated:

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November 16, 2012

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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