Forbes v. Malley et al

Filing 5

FINDINGS and RECOMMENDATIONS to dismiss action for failure to prosecute based on failure to provide a current address signed by Magistrate Judge Michael J. Seng on 12/5/2017. 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 FORBES,

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No. 1:17-cv-01111-LJO-MJS (HC)

Plaintiff,
v.
MICHAEL MALLEY,

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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Plaintiff is a former county inmate proceeding pro se and in forma pauperis with a
civil rights complaint brought pursuant to 42 U.S.C. § 1983.

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On September 11, 2017, the Court screened Plaintiff’s complaint and concluded it

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failed to state a cognizable claim. (ECF No. 4.) Plaintiff was given leave to amend. (Id.)

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On September 25, 2017, the Court’s screening order was returned as undeliverable, with

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a notation that Plaintiff was no longer in custody.

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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 63 days have passed since Plaintiff’s mail was returned, and

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Plaintiff has not notified the Court of his new address. There is no question that he is

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violation of Court rules and has failed to prosecute this action. The Court finds that the

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public's interest in expeditiously resolving this litigation and the Court's interest in

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managing the docket weigh in favor of dismissal. The third factor, risk of prejudice to
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defendants, also weighs in favor of dismissal, since a presumption of injury arises from

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the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air West,

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542 F.2d 522, 524 (9th Cir. 1976). The fourth factor—public policy favoring disposition of

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cases on their merits—is greatly outweighed by the factors in favor of dismissal

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discussed herein. Finally, the Court finds no less drastic alternative available. See Ferdik

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v. Bonzelet, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424.

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Plaintiff has not paid the filing fee in this action and likely is unable to pay, making

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monetary sanctions of little use.

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Accordingly, it is HEREBY RECOMMENDED that the action be dismissed without
prejudice for failure to prosecute based on Plaintiff’s failure to provide a current address.

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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:

December 5, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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