Tanksley v. UC Davis Hospital

Filing 4

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 10/7/2013 RECOMMENDING that this action be dismissed without prejudice pursuant to FRCP 41(b); Referred to Judge William B. Shubb; Objections due within 14 days after being served with these F & R's. (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MOODY WOODROW TANKSLEY,

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No. 2:13-cv-1765-WBS-KJN

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

UC DAVIS HOSPITAL,
Defendant.

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On August 26, 2013, plaintiff Moody Woodrow Tanksley, proceeding without counsel,

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filed this action, which was initially erroneously classified as a prisoner case. (ECF No. 1.)

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However, shortly after on August 29, 2013, the case was re-designated as a non-prisoner case.

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On August 30, 2013, in light of the re-designation, the court issued a minute order directing the

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Clerk of Court to forthwith send plaintiff a blank form application to proceed in forma pauperis

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along with a copy of the minute order. The minute order also provided that:

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Within 28 days of this order, plaintiff shall either pay the applicable
filing fee or file a completed application to proceed in forma
pauperis. Failure to pay the filing fee or file a completed
application to proceed in forma pauperis by the required deadline
will result in a recommendation that the action be dismissed with
prejudice pursuant to Federal Rule of Civil Procedure 41(b).

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(ECF No. 3.) Although that deadline has now passed, plaintiff has failed to either pay the filing

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fee or file an application to proceed in forma pauperis.
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The court notes that all of the court’s orders and notices have thus far been returned to the

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court as undeliverable with an insufficient address. However, it is plaintiff’s duty to keep the

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court informed of his current address, and service of the court’s orders at the address on record

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was effective absent the filing of a notice of change of address. In relevant part, Local Rule

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182(f) provides: “Each appearing attorney and pro se party is under a continuing duty to notify

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the Clerk and all other parties of any change of address or telephone number of the attorney or the

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pro se party. Absent such notice, service of documents at the prior address of the attorney or pro

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se party shall be fully effective.”

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Pursuant to Federal Rule of Civil Procedure 41(b), a district court may dismiss an action

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for failure to prosecute, failure to comply with the Federal Rules of Civil Procedure, failure to

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comply with the court’s local rules, or failure to comply with the court’s orders. See, e.g.,

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Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act sua sponte

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to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. U.S. Forest

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Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that courts may dismiss an action pursuant

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to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute or comply

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with the rules of civil procedure or the court’s orders); Ferdik v. Bonzelet, 963 F.2d 1258, 1260

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(9th Cir. 1992) (“Pursuant to Federal Rule of Civil Procedure 41(b), the district court may dismiss

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an action for failure to comply with any order of the court”); Pagtalunan v. Galaza, 291 F.3d 639,

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642-43 (9th Cir. 2002) (affirming district court’s dismissal of case for failure to prosecute when

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habeas petitioner failed to file a first amended petition). This court’s Local Rules are in accord.

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See E.D. Cal. L.R. 110 (“Failure of counsel or of a party to comply with these Rules or with any

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order of the Court may be grounds for imposition by the Court of any and all sanctions authorized

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by statute or Rule or within the inherent power of the Court.”); E.D. Cal. L.R. 183(a) (providing

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that a pro se party’s failure to comply with the Federal Rules of Civil Procedure, the court’s Local

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Rules, and other applicable law may support, among other things, dismissal of that party’s

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action).

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A court must weigh five factors in determining whether to dismiss a case for failure to
prosecute, failure to comply with a court order, or failure to comply with a district court’s local
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rules. See, e.g., Ferdik, 963 F.2d at 1260. Specifically, the court must consider:
(1) the public’s interest in expeditious resolution of litigation; (2)
the court’s need to manage its docket; (3) the risk of prejudice to
the defendants; (4) the public policy favoring disposition of cases
on their merits; and (5) the availability of less drastic alternatives.

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Id. at 1260-61; accord Pagtalunan, 291 F.3d at 642-43; Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir.

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1995). The Ninth Circuit Court of Appeals has stated that “[t]hese factors are not a series of

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conditions precedent before the judge can do anything, but a way for a district judge to think

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about what to do.” In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226

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(9th Cir. 2006).

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Here, the first two Ferdik factors support dismissal. Plaintiff has not responded to the

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court’s only order in this action, has not otherwise participated in this case since filing his original

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complaint, and has not provided the court with an updated address as required by the Local Rules.

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Thus, it appears that the court is devoting scarce judicial resources to this litigation despite

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plaintiff’s apparent intent to abandon it.

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The third Ferdik factor, prejudice to defendants, also favors dismissal. At the very least,

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defendant has been named in a civil action and has had progress towards resolution of the case

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delayed by plaintiff’s failure to comply with the court’s order and the Local Rules.

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The fifth Ferdik factor, availability of less drastic alternatives, also favors dismissal,

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because the court has already attempted to provide plaintiff with clear notice of the steps he needs

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to take to move the case forward, i.e., by paying the filing fee or filing an application to proceed

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in forma pauperis. If plaintiff’s application to proceed in forma pauperis had merely been

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deficient, or if plaintiff had otherwise communicated with the court, the court would certainly

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have been inclined to provide plaintiff with an opportunity to file an amended application or to

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first issue an order to show cause to which plaintiff could respond. However, given that all of the

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court’s orders and notices have thus far been returned to the court as undeliverable, it appears that

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such further steps would be an exercise in futility.

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The court also recognizes the importance of giving due weight to the fourth factor, which

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addresses the public policy favoring disposition of cases on the merits. However, for the reasons
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set forth above, factors one, two, three, and five support a recommendation of dismissal of this

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action, and factor four does not materially counsel otherwise. Dismissal is proper “where at least

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four factors support dismissal or where at least three factors ‘strongly’ support dismissal.”

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Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (citations and quotation marks

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omitted). Under the circumstances of this case, the other relevant factors outweigh the general

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public policy favoring disposition of actions on their merits. See Ferdik, 963 F.2d at 1263. If

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anything, a disposition on the merits has been hindered by plaintiff’s own failure to comply with

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the court’s order and the Local Rules.

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Nevertheless, in light of plaintiff’s pro se status, and because the circumstances suggest

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that plaintiff may not have received notice of the court’s order due to his failure to comply with

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the Local Rules, the court recommends that the action be dismissed without prejudice.

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For the foregoing reasons, IT IS HEREBY RECOMMENDED that this action be
DISMISSED WITHOUT PREJUDICE pursuant to Federal Rule of Civil Procedure 41(b).

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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)(l). Within fourteen (14)

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days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served on all parties and filed with the court within fourteen (14) days after service of the

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objections. The parties are 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. Turner v. Duncan, 158 F.3d 449, 455 (9th

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Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).

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IT IS SO RECOMMENDED.
Dated: October 7, 2013

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