Whitfield v. Fresno Community Hospital and Medical Center et al

Filing 6

ORDER to SHOW CAUSE, signed by Magistrate Judge Barbara A. McAuliffe on 07/05/2013. Show Cause Response due by 8/5/2013. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL WHITFIELD,
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Plaintiff,
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v.
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FRESNO COMMUNITY HOSPITAL, et al., )
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Defendants.
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_____________________________________ )

1:13-cv-0442 LJO BAM
ORDER TO SHOW CAUSE

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Plaintiff Michael Whitfield (“Plaintiff”) is an inmate at the Fresno County Jail proceeding

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pro se with this civil rights action pursuant to Title 42 of the United States Code section 1983.

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Plaintiff filed a complaint commencing this action on March 26, 2013, together with a request to

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proceed in forma pauperis and a motion to appoint counsel. (Docs. 1, 2 & 3).

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On April 12, 2013, the Court held that Plaintiff had not demonstrated he is eligible to proceed

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in forma pauperis. The Court issued an order recognizing Plaintiff as a three strikes litigant under

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28 U.S.C. § 1915(g)) and requiring Plaintiff to submit the $350.00 filing fee to proceed with this

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action.

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The April 12th order, properly served on Plaintiff at Fresno County Jail, Post Office Box 872,

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Fresno, California 93712, was returned by the postal service marked “Undeliverable, Not in

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Custody.”

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On May 6, 2013, a second piece of mail addressed to Plaintiff at the Fresno County Jail was
returned by the postal service marked “Undeliverable -Not in Custody.”

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Local Rule 182(f) provides that attorneys and any party appearing pro se are “under a

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continuing duty to notify the Clerk and all other parties of any change of address or telephone

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number of the attorney or the pro se party.” Thus, Plaintiff is under a continuing duty to keep the

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Clerk and others informed of any change to his address or telephone number. Mail addressed to

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Plaintiff has been returned as undeliverable, and therefore, Plaintiff has failed to keep the Court

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informed of his current address despite a continuing duty to do so.

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Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules

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

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. . . within the inherent power of the Court.” District courts have the inherent power to control their

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dockets and "in the exercise of that power, they may impose sanctions including, where appropriate

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. . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court

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may dismiss an action, with prejudice, based on a party's failure to prosecute an action, failure to

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obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 52,

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53-54 (9th 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 amendment

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of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to

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comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S.

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Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order);

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Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to lack of

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prosecution and failure to comply with local rules). In determining whether to dismiss an action for

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lack of prosecution, failure to obey a court order, or failure to comply with local rules, the court must

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consider several factors: (1) the public's interest in expeditious resolution of litigation; (2) the court's

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need to 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. Thompson,

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782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at

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1260-61; Ghazali, 46 F.3d at 53.

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Plaintiff MICHAEL WHITFIELD is hereby ORDERED TO SHOW CAUSE, if any, why

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the action should not be dismissed for his failure to follow the Local Rules. Plaintiff SHALL file

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a declaration addressing his failure to keep the court informed, or in the alternative, shall file a

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Notice of Change of Address with this Court, no later than August 5, 2013. In the event Plaintiff

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fails to show cause for his failure, this Court will recommend dismissal of the action in its entirety.

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IT IS SO ORDERED.
Dated:
10c20k

July 5, 2013

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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