Ashlock v. People Of California
Filing
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FINDINGS and RECOMMENDATIONS to dismiss action for failure to prosecute based on failure to provide current address signed by Magistrate Judge Michael J. Seng on 11/7/2017. Referred to Judge Lawrence J. O'Neill; Objections to F&R due within 14-Days. (Lundstrom, T)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ROBERT ASHLOCK,
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Petitioner,
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No. 1:16-cv-00762-LJO-MJS (HC)
v.
PEOPLE OF CALIFORNIA,
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FINDINGS AND RECOMMENDATION TO
DISMISS ACTION FOR FAILURE TO
PROSECUTE BASED ON FAILURE TO
PROVIDE A CURRENT ADDRESS
Respondent.
FOURTEEN (14) DAY OBJECTION
DEADLINE
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Petitioner is a former state prisoner proceeding pro se with a petition for writ of
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habeas corpus pursuant to 28 U.S.C. § 2254. He initiated this action on June 2, 2016,
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with a petition stating that he was incarcerated at the California Healthcare Facility. (ECF
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No. 1.) He challenged the May 19, 2014 judgment of the Merced County Superior Court,
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sentencing him to a five-year term for possession of a controlled substance with a
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firearm.
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.
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No. 5.) On August 2, 2016, Respondent sought an extension of time. (ECF No. 13.)
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Respondent’s motion was granted, and the Court’s order was sent to Petitioner at his
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address of record. (ECF No. 14.) On August 19, 2016, the Court’s order was returned as
On June 6, 2016, the Court ordered Respondent to respond to the petition. (ECF
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undeliverable. Respondent proceeded to file an answer. (ECF No. 15.) Petitioner filed no
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traverse. The petition is pending review on the merits.
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Local Rule 183(b) requires a party proceeding pro se to keep the Court apprised
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of his current address: “If mail directed to a plaintiff in propria persona by the Clerk is
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returned by the U.S. Postal service, and if such plaintiff fails to notify the Court and
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opposing parties within sixty-three (63) days thereafter of a current address, the Court
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may dismiss the action without prejudice for failure to prosecute.”
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The Court has authority to dismiss an action for failure to prosecute and failure to
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follow court rules. Local Rule 110 provides that “failure of counsel or of a party to comply
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with these Rules or with any order of the Court may be grounds for imposition by the
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Court of any and all sanctions . . . within the inherent power of the Court.” District courts
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have the inherent power to control their dockets and “in the exercise of that power, they
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may impose sanctions including, where appropriate, default or dismissal.” Thompson v.
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Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based
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on a party’s failure to prosecute, failure to obey a court order, or failure to comply with
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local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for
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noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.
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1992) (dismissal for failure to comply with an order requiring amendment of a complaint);
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Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply
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with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v.
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U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply
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with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986)
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(dismissal for lack of prosecution and failure to comply with local rules).
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In determining whether to dismiss an action on this basis, the Court must consider
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several factors: (1) the public’s interest in expeditious resolution of litigation, (2) the
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Court’s need to manage its docket, (3) the risk of prejudice to the defendants, (4) the
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public policy favoring disposition of cases on their merits, and (5) the availability of less
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drastic alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24;
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Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.
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Here, more than one year has passed since Petitioner’s mail was returned, and
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Petitioner has not notified the Court of his new address. A review of the California
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Department of Corrections and Rehabilitation (“CDCR”) Inmate Locator reflects that
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Petitioner is no longer in CDCR custody. There is no question that he is violation of
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Court rules and has failed to prosecute this action. Additionally, because the petition has
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been pending for a lengthy period, the Court finds that the public's interest in
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expeditiously resolving this litigation and the Court's interest in managing the docket
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weigh in favor of dismissal. The third factor, risk of prejudice to respondents, also weighs
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in favor of dismissal, since a presumption of injury arises from the occurrence of
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unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524
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(9th Cir. 1976). The fourth factor—public policy favoring disposition of cases on their
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merits—is greatly outweighed by the factors in favor of dismissal discussed herein.
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Finally, the Court finds no less drastic alternative available. See Ferdik v. Bonzelet, 963
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F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. Petitioner was
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expressly informed of the requirement to apprise the Court of his current address (ECF
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No. 3), but failed to do so. Because of this failure, it is not possible for the Court to
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communicate with Petitioner or to explore any alternatives short of dismissal of the case.
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Accordingly, it is HEREBY RECOMMENDED that the action be dismissed without
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prejudice for failure to prosecute based on petitioner’s failure to provide a current
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address. The Clerk of Court is directed to close the case.
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The findings and recommendation are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within
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fourteen (14) days after being served with the findings and recommendation, any party
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may file written objections with the Court and serve a copy on all parties. Such a
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document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendation.” Any reply to the objections shall be served and filed within fourteen
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(14) days after service of the objections. The parties are advised that failure to file
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objections within the specified time may result in the waiver of rights on appeal.
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Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923
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F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
Dated:
November 7, 2017
/s/
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Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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