Sharit v. Stanislaus County Health Service Agency

Filing 9

FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED, With Prejudice, Based on Plaintiff's Failure to Obey the Court's Order, Failure to Comply With Local Rules, and a Failure to Prosecute the Action re 1 Complaint, signed by Magistrate Judge Barbara A. McAuliffe on 1/14/2014. Referred to Judge Ishii. Objections to F&R due within fifteen (15) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PATRICK JOSEPH SHARIT,

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Case No. 1:13-cv-1192 AWI-BAM

Plaintiff,

FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF
THIS CASE

v.
STANISLAUS COUNTY HEALTH
SERVICE AGENCY,

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Defendant.
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Plaintiff Patrick Sharit (“Plaintiff”) is a state prisoner proceeding pro se in this action filed on

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July 26, 2013, together with a request to proceed in forma pauperis. (Docs. 1, 2). On August 28,

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2013, the Court screened Plaintiff’s complaint and determined he failed to state a cognizable claim.

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(Doc. 7). The Court dismissed the complaint with leave to amend, and ordered Plaintiff to file an

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amended complaint within thirty days of the date of service, or no later than September 28, 2013.

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On September 20, 2013, the Court’s Order that had been properly served on Plaintiff at the

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Deuel Vocational Institution, Post Office Box 400, Tracy, California 95378, was returned by the postal

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service marked “Undeliverable, Paroled.”

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On December 17, 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 Rule

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182(f). (Doc. 8). Pursuant to Local Rule 183(b), if an address is not updated within sixty days of the

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

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January 2, 2014, this order addressed to Plaintiff at the Deuel Vocational Institution was also returned

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by the postal service marked “Undeliverable, Paroled.” In light of the above, the Court recommends

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dismissal of this action.
DISCUSSION

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

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or with any order of the Court may be grounds for the 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 may

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dismiss an action, with prejudice, based on a party’s failure to prosecute an action, failure to obey a

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court order, 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 1258, 1260-61

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(9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of complaint);

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Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule

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requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d

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128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779

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F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to lack of prosecution and failure to comply with

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local rules).

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

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

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interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of

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prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5)

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the availability of less drastic alternatives. Thompson v. Housing Auth., 782 F.2d at 831; Henderson v.

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Duncan, 779 F.2d at 1423-24; Malone v. U.S. Postal Service, 833 F.2d at 130; Ferdik, 963 F.2d at

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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 has

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

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

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order was returned to the Court as undeliverable. In accordance with this Court’s Local Rules, the

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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 favoring

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the disposition of cases on the merits is also met.

While the public’s interest certainly favors

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

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in our judicial system and in the speedy and fair administration of justice. Here, there will be no

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resolution of this case given Plaintiff’s failure to advise the Court of his new address. Finally, a

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court's warning to a party that his failure to obey the court’s order will result in dismissal satisfies the

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“consideration of alternatives” requirement. Ferdik v. Bonzelet, 963 F.2d at 1262; Malone v. U.S.

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Postal Service, 833 at 132-33; Henderson v. Duncan, 779 F.2d at 1424. In this case, the Court’s order

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expressly stated, “In the event Plaintiff fails to show cause for his failure, this Court will recommend

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dismissal of the action in its entirety.” (Doc. 8, pg. 3). Thus, Plaintiff had adequate warning that

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dismissal would result from noncompliance with the Court’s order.
CONCLUSION AND RECOMMENDATION

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

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prejudice, based on Plaintiff’s failure to obey the Court’s order, failure to comply with Local Rules,

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and a failure to prosecute the action.

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

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pursuant to the provisions of Title 28 of the United States Code section 636(b)(l). Within fifteen (15)

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days after being served with these findings and recommendations, Plaintiff may file written objections

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

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Recommendations.” Plaintiff is advised that failure to file objections within the specified time may

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waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

January 14, 2014

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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