Pennings v. Smith, et al.

Filing 40

FINDINGS and RECOMMENDATIONS That This Case be Dismissed for Plaintiff's Failure to Comply With a Court Order and Failure to Prosecute, signed by Magistrate Judge Erica P. Grosjean on 3/16/18. Objections to F&R Due Within Twenty One Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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OTONIEL TYLER PENNINGS,

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Plaintiff,
v.
R. BROOMFIELD, et al.,

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Defendant.

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Case No. 1:15-cv-01183-AWI-EPG
FINDINGS AND RECOMMENDATIONS
THAT THIS CASE BE DISMISSED FOR
PLAINTIFF’S FAILURE TO COMPLY
WITH A COURT ORDER AND FAILURE
TO PROSECUTE
OBJECTIONS, IF ANY, DUE WITHIN 21
DAYS

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Otoniel Tyler Pennings (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on

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July 29, 2015. (ECF No. 1.)

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I.

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On December 15, 2017 and February 5, 2018, the Court mailed two Court Orders to

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Plaintiff at his address on the docket. (ECF Nos. 38, 39.) Those Orders were returned as

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undeliverable (Paroled) shortly after they were mailed.

BACKGROUND

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A pro se plaintiff must keep the Court and opposing parties informed of the party's

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correct current address. Local Rule 182(f). If a party moves to a different address without

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filing and serving a notice of change of address, documents served at a party's old address of

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record shall be deemed received even if not actually received. Id.

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If mail directed to a pro se plaintiff at the address of record is returned by the United
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States Postal Service as undeliverable, the order will not be re−served a second time absent a

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notice of change of address. If a pro se plaintiff's address is not updated within sixty−three

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(63) days of mail being returned as undeliverable, the case will be dismissed for failure to

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prosecute. Local Rule 183(b).

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Plaintiff was informed of these requirements in the Court’s July 30, 2015 Order. (ECF

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No. 3 at 5, discussing Local Rules 182 and 183 in a section titled “Current Address Required”).

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II.

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Plaintiff failed to keep the Court informed of his current address, as required by Local

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Rules 182 and 183. Accordingly, the Court will recommend that Plaintiff’s case be dismissed

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ANALYSIS

without prejudice for failure to comply with a court order and failure to prosecute.

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“In determining whether to dismiss a[n] [action] for failure to prosecute or failure to

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comply with a court order, the Court must weigh the following factors: (1) the public=s interest

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

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prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the

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public policy favoring disposition of cases on their merits.@ Pagtalunan v. Galaza, 291 F.3d

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639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).

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“‘The public=s interest in expeditious resolution of litigation always favors dismissal.’”

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Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly,

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this factor weighs in favor of dismissal.

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Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in

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and of itself to warrant dismissal.” Id. at 642 (citing Yourish, 191 F.3d at 991). However,

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Adelay inherently increases the risk that witnesses= memories will fade and evidence will

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become stale,@ Id. at 643, and it is Plaintiff's failure to maintain a current mailing address that is

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causing delay. The case is now stalled as a result. Therefore, the third factor weighs in favor

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of dismissal.

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As for the availability of lesser sanctions, at this stage in the proceedings there is little

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available to the Court that would constitute a satisfactory lesser sanction while protecting the

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Court from further unnecessary expenditure of its scarce resources. Monetary sanctions are of
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little use, considering Plaintiff’s incarceration and in forma pauperis status, and given the stage

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of these proceedings, the preclusion of evidence or witnesses is not available. Additionally,

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because the dismissal being considered in this case is without prejudice, the Court is stopping

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short of using the harshest possible sanction of dismissal with prejudice.

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Finally, because public policy favors disposition on the merits, this factor weighs
against dismissal. Id.
After weighing the factors, including the Court’s need to manage its docket, the Court
finds that dismissal is appropriate.
III.

RECOMMENDATION

Accordingly, the Court HEREBY RECOMMENDS that:

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1. This action be dismissed without prejudice, based on Plaintiff's failure to

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prosecute this case and failure to maintain a current mailing address; and

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2. The Clerk of Court be directed to close this case.

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These findings and recommendations are submitted to the district judge assigned to the

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case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within twenty-one days after

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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

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Findings and Recommendations." Plaintiff is advised that failure to file objections within the

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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d

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834, 839 (9th Cir. 2014) (quoting Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

March 16, 2018

/s/
UNITED STATES MAGISTRATE JUDGE

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