Salmon v. Kern County Sheriff et al

Filing 8

FINDINGS and RECOMMENDATIONS Dismissing the Action Without Prejudice, signed by Magistrate Judge Jennifer L. Thurston on 11/4/2013. Referred to Judge Ishii. Objections to F&R due within 14 days. (Hall, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

KEVIN JAMES SALMON,
Plaintiff,

12
v.

13
14

KERN COUNTY SHERIFF, et al.,

15

Defendants.

16

)
)
)
)
)
)
)
)
)
)

Case No.: 1:13-cv-00725-AWI-JLT
FINDINGS AND RECOMMENDATIONS
DISMISSING THE ACTION WITHOUT
PREJUDICE

17

Kevin James Salmon (“Plaintiff”) is proceeding pro se and in forma pauperis in this action

18

against Kern County Sheriff, Child Protective Services, Trima Brown, Marcela Powel, and Deputy

19

Meyes (collectively, “Defendants”). For the following reasons, the Court recommends the action be

20

DISMISSED WITHOUT PREJUDICE.

21

I.

Relevant Procedural History

22

On May 28, 2013, the Court screened Plaintiff’s complaint pursuant to 28 U.S.C. § 1915(a)

23

and determined he failed to state a cognizable claim. (Doc. 3). The Court dismissed the complaint

24

with leave to amend, and ordered Plaintiff to file an amended complaint within thirty days of the date

25

of service, or no later than June 27, 2013. (Id. at 8).

26

After Plaintiff failed to file an amended complaint, the Court ordered Plaintiff to show cause

27

why the action should not be dismissed for his failure to prosecute the action and failure to comply with

28

the Court’s order. (Doc. 4). In response, Plaintiff filed a motion for a thirty-day extension of time to
1

1

file an amended complaint (Doc. 5), which was granted by the Court on July 9, 2013. (Doc. 6). The

2

Court ordered Plaintiff to “file a First Amended Complaint no later than August 9, 2013.” (Id. at 1)

3

(emphasis in original). However, Plaintiff failed to comply or otherwise respond to the Court’s order.

4

Accordingly, the Court issued a second order to show cause on August 14, 2013. (Doc. 7). The order

5

was returned as “undeliverable” with a note that Plaintiff was no longer in custody on August 19, 2013.

6

Plaintiff’s forwarding address is unknown.

7

II.

Requirements of the Local Rules
Pursuant to Local Rule 183(b), a party appearing in propria persona is required to keep the

8
9

Court apprised of his current address: “If mail directed to a plaintiff in propria persona by the Clerk is

10

returned by the U.S. Postal Service, and if such plaintiff fails to notify the Court and opposing parties

11

within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without

12

prejudice for failure to prosecute.” LR 183(b). Because more than 63 days have passed since the

13

document was returned as undeliverable, Plaintiff has failed to comply with the Local Rules.

14

III.

Discussion and Analysis

15

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

16

court may impose sanctions including dismissal of an action. Thompson v. Housing Authority of Los

17

Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action with prejudice, based on a

18

party’s failure to prosecute an action or failure to obey a court order, or failure to comply with local

19

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

20

with local rules); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to

21

comply with an order requiring amendment of complaint); Henderson v. Duncan, 779 F.2d 1421, 1424

22

(9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules).

23

In determining whether to dismiss an action for failure to prosecute, failure to comply with the

24

Local Rules, or failure to obey a court order, the Court must consider several factors, including: “(1)

25

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

26

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

27

merits; and (5) the availability of less drastic sanctions.” Henderson, 779 F.2d at 1423-24; see also

28

Ferdik, 963 F.2d at 1260-61; Thompson, 782 F.2d at 831.
2

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

1
2

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

3

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

4

of unreasonable delay in prosecution of an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th

5

Cir. 1976). In the Orders to Show Cause, the Court warned that it “may dismiss an action with

6

prejudice, based upon a party’s failure to prosecute an action or failure to obey a court order, or failure

7

to comply with local rules” (Doc. 4 at 2; Doc. 7 at 2). Thus, Plaintiff had adequate warning that

8

dismissal would result from noncompliance with the Court’s orders, and his failure to prosecute the

9

action. The Court’s warnings to Plaintiff that failure to prosecute and comply with the Local Rules of

10

the Eastern District would result in dismissal satisfies the requirement that the Court consider less

11

drastic measures. Ferdik, 963 F.2d at 1262; Henderson, 779 F.2d at 1424.

12

Further, the policy favoring disposition of cases on their merits is outweighed by the factors in

13

favor of dismissal, especially in light of the fact that Plaintiff has failed to file an amended complaint.

14

The Court will not, and cannot, hold the case in abeyance based upon Plaintiff’s failure to prosecute or

15

notify the Court of a change in address.

16

IV.

17

Findings and Recommendations
Plaintiff has failed to prosecute this action or and failed to comply with the Local Rules. As

18

set forth above, the factors set forth by the Ninth Circuit weigh in favor of dismissal of the matter. No

19

lesser sanction is feasible given the Court’s inability to communicate with Plaintiff.

20

Accordingly, IT IS HEREBY RECOMMENDED:

21

1.

This action be DISMISSED WITHOUT PREJUDICE; and

22

2.

The Clerk of Court be DIRECTED to close this action.

23

These Findings and Recommendations are submitted to the United States District Judge

24

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local

25

Rules of Practice for the United States District Court, Eastern District of California. Within fourteen

26

days after being served with these Findings and Recommendations, Plaintiff may file written objections

27

with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and

28

Recommendations.”
3

1
2

Plaintiff is advised that failure to file objections within the specified time may waive the right to
appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

3
4
5
6

IT IS SO ORDERED.
Dated:

November 4, 2013

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4