Goods v. Bakersfield Police Department

Filing 5

FINDINGS and RECOMMENDATIONS Dismissing the Action Without Prejudice, signed by Magistrate Judge Jennifer L. Thurston on 11/27/2017. Referred to Judge Dale A. Drozd. Objections to F&R due within 14 days. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHARLES GOODS,

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Plaintiff,

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v.
BAKERSFIELD POLICE DEPT.,

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Defendant.

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Case No.: 1:17-cv-01009-DAD-JLT
FINDINGS AND RECOMMENDATIONS
DISMISSING THE ACTION WITHOUT
PREJUDICE

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Charles Goods seeks to proceed pro se and in forma pauperis in this action against the

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Bakersfield Police Department for a violation of his civil rights. Because Plaintiff has failed to comply

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with the Local Rules and failed to prosecute this action, the Court recommends the matter be

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DISMISSED without prejudice.

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I.

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Background
Plaintiff initiated this action by filing a complaint on July 31, 2017. (Doc. 1) The Court

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reviewed the allegations in the compliant pursuant to 28 U.S.C. 1915(e)(2), and determined Plaintiff

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failed to clearly identify the cause of action upon which he seeks to proceed. (Doc. 4) Further, the

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facts alleged were insufficient for the Court to determine Plaintiff stated a cognizable claim. (Id. at 7-

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8) Therefore, the Court dismissed the complaint with leave to amend. (Id. at 8)

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On September 19, 2017, the order was returned to the Court as “undeliverable” by the United
States Post Office. To date, Plaintiff’s forwarding address remains unknown, because he has not filed a
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“Notice of Change of Address” with the Court.

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II.

Requirements of the Local Rules
Pursuant to Local Rule 183(b), a party appearing in propria persona is required to keep the

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Court apprised 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 opposing parties

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within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without

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prejudice for failure to prosecute.” LR 183(b). Because more than 63 days have passed since the

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document was returned as undeliverable because Plaintiff was paroled, he has failed to comply with

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the Local Rules.

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III.

Failure to Prosecute

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“District courts have inherent power to control their dockets,” and in exercising that power, a

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court may impose sanctions including dismissal of an action. Thompson v. Housing Authority of Los

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Angeles, 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 obey a court order, or failure to comply with local

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rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 2995) (dismissal for failure to comply

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with local rules); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to

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comply with an order requiring amendment of complaint); Henderson v. Duncan, 779 F.2d 1421, 1424

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(9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules).
In determining whether to dismiss an action for failure to prosecute, failure to comply with the

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Local Rules, or failure to obey a court order, the Court must consider several factors, including: “(1)

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

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(3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their

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merits; and (5) the availability of less drastic sanctions.” Henderson, 779 F.2d at 1423-24; see also

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Ferdik, 963 F.2d at 1260-61; Thompson, 782 F.2d at 831.

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IV.

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Discussion and Analysis
To determine whether to dismiss an action for failure to prosecute and failure to comply with

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the Local Rules, the Court must consider several factors, including: “(1) the public’s interest in

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expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice
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to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the

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availability of less drastic sanctions.” Henderson, 779 F.2d at 1423-24; see also Ferdik, 963 F.2d at

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1260-61; Thomspon, 782 F.2d at 831.
Public interest and the Court’s docket

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A.

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In the case at hand, the public’s interest in expeditiously resolving this litigation and the

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Court’s interest in managing the docket weigh in favor of dismissal. See Yourish v. Cal. Amplifier,

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191 F.3d 983, 990 (9th Cir. 1999) (“The public’s interest in expeditious resolution of litigation always

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favors dismissal”); Ferdik, 963 F.2d at 1261 (recognizing that district courts have inherent interest in

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managing their dockets without being subject to noncompliant litigants). This Court cannot, and will

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not hold, this case in abeyance based upon Plaintiff’s failure to comply with the Local Rules and

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failure to take action to continue prosecution in a timely manner. See Morris v. Morgan Stanley &

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Co., 942 F.2d 648, 652 (9th Cir. 1991) (explaining a plaintiff has the burden “to move toward…

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disposition at a reasonable pace, and to refrain from dilatory and evasive tactics”). Accordingly, these

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factors weigh in favor of dismissal of the action.

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B.

Prejudice to Defendant

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To determine whether the defendant has been prejudiced, the Court must “examine whether the

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plaintiff’s actions impair the … ability to go to trial or threaten to interfere with the rightful decision of

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the case.” Malone, 833 F.2d at 131 (citing Rubin v. Belo Broadcasting Corp., 769 F.2d 611, 618 (9th

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Cir. 1985)). Significantly, a presumption of prejudiced arises when a plaintiff unreasonably delays the

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prosecution of an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). Here, Plaintiff

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has not taken any action to prosecute the action. Accordingly, this factor weighs in favor of dismissal.

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C.

Consideration of less drastic sanctions

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The Court “abuses its discretion if it imposes a sanction of dismissal without first considering

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the impact of the sanction and the adequacy of less drastic sanctions.” United States v. Nat’l Medical

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Enterprises, Inc., 792 F.2d 906, 912 (9th Cir. 1986). However, no lesser sanction is feasible given the

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Court’s inability to communicate with Plaintiff.

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D.

Public policy

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Given Plaintiff’s failure to comply with the Local Rules and failure to prosecute the action, the
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policy favoring disposition of cases on their merits is outweighed by the factors in favor of dismissal.

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See Malone, 833 F.2d at 133, n.2 (explaining that although “the public policy favoring disposition of

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cases on their merits . . . weighs against dismissal, it is not sufficient to outweigh the other four

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factors”).

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V.

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Findings and Recommendations
Plaintiff has failed to follow the requirements of the Local Rules or to prosecute this action.

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As set forth above, the factors set forth by the Ninth Circuit weigh in favor of dismissal of the matter.

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Accordingly, the Court ORDERS:

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This action be DISMISSED without prejudice; and

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The Clerk of Court be directed to close this action.

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These Findings and Recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local

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Rules of Practice for the United States District Court, Eastern District of California. Within fourteen

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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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Wilkerson v. Wheeler, 772 F.3d 834, 834 (9th Cir. 2014).

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IT IS SO ORDERED.
Dated:

November 27, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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