Bruce v. Bloom

Filing 12

FINDINGS and RECOMMENDATIONS recommending that this 1 Case be Dismissed for Plaintiff's Failure to Comply with a Court Order and Failure to Prosecute; Objections Due within Fourteen (14) Days signed by Magistrate Judge Erica P. Grosjean on 11/15/2017. Referred to Judge Dale A. Drozd. Objections to F&R due by 12/4/2017. (Sant Agata, S)

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1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 DARLA GAY BRUCE, 5 6 7 8 Case No. 1:17-cv-00914-DAD-EPG Plaintiff, FINDINGS AND RECOMMENDATIONS THAT THIS CASE BE DISMISSED FOR PLAINTIFF’S FAILURE TO COMPLY WITH A COURT ORDER AND FAILURE TO PROSECUTE Defendant. OBJECTIONS DUE WITHIN FOURTEEN (14) DAYS v. BLOOM, 9 10 Darla Gay Bruce (“Plaintiff”) is a state prisoner proceeding pro se and in forma 11 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on 12 July 3, 2017. 13 On July 11, 2017, the Court mailed two Court Orders to Plaintiff at her address on the 14 docket. (ECF No. 5). Those Orders were returned as undeliverable (no reason given) shortly 15 after they were mailed. 16 A pro se plaintiff must keep the Court and opposing parties informed of the party's 17 correct current address. Local Rule 182(f). If a party moves to a different address without filing 18 and serving a notice of change of address, documents served at a party's old address of record 19 shall be deemed received even if not actually received. Id. 20 If mail directed to a pro se plaintiff at the address of record is returned by the United 21 States Postal Service as undeliverable, the order will not be re−served a second time absent a 22 notice of change of address. If a pro se plaintiff's address is not updated within sixty−three 23 (63) days of mail being returned as undeliverable, the case will be dismissed for failure to 24 prosecute. Local Rule 183(b). 25 On October 4, 2017, the Court issued an Order directing Plaintiff to show cause within 26 14 days as to why this case should not be dismissed for failure to prosecute and failure to 27 maintain a current mailing address. (ECF No. 9.) Plaintiff did not file a written response to the 28 Order to show cause, as directed. Instead, the Court received a notice that the mailing was 1 1 again returned as undeliverable. 2 Plaintiff failed to keep the Court informed of her current address, as required by Local 3 Rules 182 and 183. Accordingly, the Court will recommend that Plaintiff’s case be dismissed 4 for failure to comply with a court order and failure to prosecute. 5 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 6 comply with a court order, the Court must weigh the following factors: (1) the public=s interest 7 in expeditious resolution of litigation; (2) the court=s need to manage its docket; (3) the risk of 8 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 9 public policy favoring disposition of cases on their merits.@ Pagtalunan v. Galaza, 291 F.3d 10 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 11 “‘The public=s interest in expeditious resolution of litigation always favors dismissal.’” 12 Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, 13 this factor weighs in favor of dismissal. 14 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 15 and of itself to warrant dismissal.” Id. at 642 (citing Yourish, 191 F.3d at 991). However, 16 Adelay inherently increases the risk that witnesses= memories will fade and evidence will 17 become stale,@ Id. at 643, and it is Plaintiff's failure to maintain a current mailing address that is 18 causing delay. The case is now stalled as a result. Therefore, the third factor weighs in favor 19 of dismissal. 20 As for the availability of lesser sanctions, at this stage in the proceedings there is little 21 available to the Court which would constitute a satisfactory lesser sanction while protecting the 22 Court from further unnecessary expenditure of its scarce resources. Monetary sanctions are of 23 little use, considering Plaintiff’s incarceration and in forma pauperis status, and given the stage 24 of these proceedings, the preclusion of evidence or witnesses is not available. Additionally, 25 because the dismissal being considered in this case is without prejudice, the Court is stopping 26 short of using the harshest possible sanction of dismissal with prejudice. 27 28 Finally, because public policy favors disposition on the merits, this factor weighs against dismissal. Id. 2 1 2 After weighing the factors, including the Court’s need to manage its docket, the Court finds that dismissal is appropriate. Accordingly, the Court HEREBY RECOMMENDS that: 3 1. This action be dismissed without prejudice, based on Plaintiff's failure to 4 prosecute this case and failure to maintain a current mailing address; and 5 2. The Clerk of Court be directed to close this case. 6 These findings and recommendations are submitted to the district judge assigned to the 7 case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within fourteen days after being 8 served with these findings and recommendations, Plaintiff may file written objections with the 9 court. Such a document should be captioned "Objections to Magistrate Judge's Findings and 10 Recommendations." Plaintiff is advised that failure to file objections within the specified time 11 may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 12 2014) (quoting Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 13 14 15 IT IS SO ORDERED. Dated: November 15, 2017 /s/ UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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