Clifton v. Pierre et al
Filing
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FINDINGS and RECOMMENDATIONS recommending that this action be Dismissed for Plaintiff's failure to prosecute this action re 17 Amended Prisoner Civil Rights Complaint; referred to Judge Drozd,signed by Magistrate Judge Gary S. Austin on 11/29/2016. Objections to F&R due (14- Day Deadline) (Martin-Gill, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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WILLIAM CLIFTON,
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Plaintiff,
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v.
FINDINGS AND RECOMMENDATION
REGARDING DISMISSAL FOR FAILURE
TO PROSECUTE
OBJECTIONS, IF ANY, DUE IN 14 DAYS
TALLEY,
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1:13-cv-01325-DAD-GSA-PC
Defendant.
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I.
BACKGROUND
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Plaintiff, William Clifton, is a state prisoner proceeding pro se and in forma pauperis in
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this civil rights action pursuant to 42 U.S.C § 1983. On August 17, 2016, this Court issued an
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order addressing Defendant’s request for clarification, and an order granting Defendant an
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extension of time. (ECF Nos. 37, 39.) The United States Postal Service (“USPS”) returned
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both of the orders on September 1, 2016, as “Undeliverable” to Plaintiff. A notation on the
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envelopes indicated that Plaintiff was not at CSP-LAC and had been discharged. The Court
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issued two more others on August 18, 2016 and September 8, 2016, and those orders were also
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returned by the USPS as undeliverable to Plaintiff for the same reasons. (ECF Nos. 40, 42.)
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II.
DISCUSSION
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Local Rule 183(b) requires that a party appearing in propria persona shall keep the
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Court and opposing parties advised of his or her current address. If mail directed to a plaintiff
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in propria persona by the Clerk is returned by the U.S. Postal Service, and if the plaintiff fails
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to notify the Court and opposing parties within sixty-three (63) days thereafter of a current
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address, the Court may dismiss the action without prejudice for failure to prosecute. To date,
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more than 63 days have passed since the mail was returned as undeliverable and the Plaintiff
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has failed to provide the Court with a new address. Accordingly, he has failed to prosecute this
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action.
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Local Rule 110 provides that “a failure of counsel or of a party to comply with these
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Local Rules or with any order of the Court may be grounds for the imposition by the Court of
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any 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 impose
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sanctions including, where appropriate . . . dismissal of a case.” Thompson v. Housing Auth.,
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782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a
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party’s failure to prosecute an action, or failure to comply with local rules. See, e.g., Ghazali v.
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Moran, 46 F.3d 52, 53 54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Carey
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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); Henderson v. Duncan, 779 F.2d
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1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local
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rules). In determining whether to dismiss an action for lack of prosecution, failure to obey a
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court order, or failure to comply with local rules, the court must consider several factors: (1) the
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public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its
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docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of
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cases on their merits; and (5) the availability of less drastic alternatives. Carey, 856 F. 2d at
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1440; Ghazali, 46 F. 3d at 53; Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24.
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In the instant case, the Court finds that the public’s interest in expeditiously resolving
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this litigation and the Court’s interest in managing the docket weigh in favor of dismissal
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because there is no indication that the Plaintiff intends to prosecute this action. The third
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factor, risk of prejudice to defendants, also weighs in favor of dismissal because a presumption
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of injury arises from any unreasonable delay in prosecuting an action. Anderson v. Air West,
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42 F.2d 522, 524 (9th Cir. 1976). The fourth factor, public policy favoring disposition of cases
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on their merits, is greatly outweighed by the factors in favor of dismissal. Finally, no lesser
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sanction is available because the Court is unable to communicate with the Plaintiff.
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III.
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RECOMMENDATION
Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED
for Plaintiff’s failure to prosecute this action.
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This Findings and Recommendation is submitted to the United States District Court
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Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B). Within fourteen (14)
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days after being served with a copy, any party may file written objections with the Court. Such
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a document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28
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U.S.C. § 636(b)(1)(C).
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specified time may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler,
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772 F. 3d 834, 839 (9th Cir. 2014).
The parties are advised that failure to file objections within the
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IT IS SO ORDERED.
Dated:
November 29, 2016
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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