Dukes v. Warfield

Filing 9

ORDER DISMISSING CASE for failure to prosecute. All pending motions are TERMINATED. Signed by Judge Saundra Brown Armstrong, on 12/16/09. (lrc, COURT STAFF) (Filed on 12/28/2009) Modified on 12/30/2009 (jlm, COURT STAFF).

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. LT. C. WARFIELD, Defendant. MELVIN DUKES, Plaintiff,

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA No. C 09-04923 SBA (PR) ORDER OF DISMISSAL

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Plaintiff filed the instant pro se civil rights complaint under 42 U.S.C. § 1983 in the United States District Court for the Eastern District of California, and in an Order dated October 8, 2009, Magistrate Judge John F. Moulds of the Eastern District transferred this action to this Court. On October 9, 2009, sent Plaintiff a copy of the October 8, 2009 Order. On October 21, 2009, this case was transferred to the Northern District. On October 30, 2009, Magistrate Judge Moulds's October 8, 2009 Order was returned as undeliverable with a notation: "Return to Sender -- Inmate Refused." In an Order dated November 20, 2009, this Court directed Plaintiff to inform the Court of his continued intent to prosecute this action. The Court informed Plaintiff that if he failed to do so within thirty days, this action would be dismissed without prejudice for failure to prosecute. The Order was sent to Plaintiff at his last known address, Salinas Valley State Prison, and it was also returned as undeliverable with a notation: "Return to Sender -- Inmate Refused." A district court may sua sponte dismiss an action for failure to prosecute or to comply with a court order pursuant to Federal Rule of Civil Procedure 41(b). See Link v. Wabash R.R., 370 U.S. 626, 633 (1962); McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991). The court should consider five factors before dismissing an action under Rule 41(b): (1) the public interest in the expeditious resolution of the litigation: (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the availability of less drastic sanctions; and (5) the public policy favoring the disposition of actions on their merits. See Malone v. United States Postal Serv., 833 F.2d 128, 130

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

(9th Cir. 1987).1 The first three factors, above, weigh in favor of dismissal in light of the fact that Plaintiff has not pursued this matter since it has been transferred to this district. In addition, by refusing the aforementioned legal mail, Plaintiff is implicitly expressing his lack of intent to prosecute this action. The fourth factor also weighs in favor of dismissal because less drastic sanctions would have little impact in light of Plaintiff's apparent lack of interest in this case. Although the fifth factor appears to weigh against dismissal, dismissal is appropriate in light of the other four factors. See Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002) (finding district court did not abuse its discretion in dismissing petition with prejudice where three of the five factors weighed in favor of dismissal). In light of the foregoing, this action is hereby DISMISSED for failure to prosecute, pursuant to Federal Rule of Civil Procedure 41(b). The Clerk of the Court shall close the file and terminate any pending motions. IT IS SO ORDERED. DATED: 12/16/09 SAUNDRA BROWN ARMSTRONG United States District Judge

The court should also afford the litigant prior notice of its intention to dismiss, id. at 133, as this Court has done. While the Court's November 20, 2009 Order was returned as undeliverable, the record shows that Plaintiff had actually refused to accept it, as mentioned above.
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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C:\Documents and Settings\Workstation\Local Melvin Dukes D-33572 Salinas Valley State Prison P.O. Box 1050 Soledad, CA 93960-1050 Dated: December 28, 2009 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA MELVIN DUKES, Plaintiff, v. D. MANTEL et al, Defendant. /

Case Number: CV09-04923 SBA CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on December 28, 2009, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

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