1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BILLY HOWARD, Case No. 1:21-cv-00931-JLT-CDB (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO

DISMISS ACTION WITHOUT PREJUDICE

13 v.

FOR PLAINTIFF’S FAILURE TO COMPLY

14 KERN COUNTY LERDO FACILITY WITH THIS COURT’S LOCAL RULES MEDICAL CHIEF, et al., AND TO PROSECUTE THIS ACTION 15 Defendants. 14-DAY OBJECTION PERIOD 16

17 18 Plaintiff Billy Howard is proceeding pro se and in forma pauperis in this civil rights 19 action brought pursuant to 42 U.S.C. § 1983. The action proceeds against Defendants Ramon 20 Mansilungan, Kendra Lawrence, and Kenya Gooden for deliberate indifference to serious medical 21 needs in violation of the Eighth Amendment. 22 I. RELEVANT BACKGROUND 23 The Court issued its Discovery and Scheduling Order on January 2, 2024. (Doc. 45.) 24 On July 31, 2024, Defendants filed a motion for summary judgment asserting Plaintiff 25 failed to exhaust his administrative remedies before filing suit. (Doc. 49.) 26 On August 1, 2024, the Court issued a minute order directing Defendants to re-serve their 27 motion to include the required Rand1 notice. (See Doc. 50 [minute order].) Defendants complied 1 with the Court’s order that same date. (See Doc. 51.) 2 On August 12, 2024, the United States Postal Service returned the August 1 minute order, 3 served to Plaintiff’s address of record by the Court, marked “Undeliverable, Not in Custody.” 4 Despite the passage of more than 63 days, Plaintiff has failed to keep the Court apprised 5 of his current address. Further, Plaintiff has failed to oppose Defendants’ motion for summary 6 judgment. 7 II. DISCUSSION 8 Applicable Legal Standards 9 The Local Rules, corresponding with Federal Rule of Civil Procedure 11, provide, 10 “[f]ailure of counsel or of a party to comply with these Rules or with any order of the Court may 11 be grounds for the imposition by the Court of any and all sanctions authorized by statute or Rule 12 or within the inherent power of the Court.” Local Rule 110. 13 Local Rule 182(f) provides that a “pro se party is under a continuing duty to notify the 14 Clerk and all other parties of any change of address …. Absent such notice, service of documents 15 at the prior address of the … pro se party shall be fully effective.” And Local Rule 183(b) 16 provides: 17 Address Changes. A party appearing in propria persona shall keep the Court and opposing parties advised as to his or her current 18 address. If mail directed to a plaintiff in propria persona by the Clerk is returned by the U.S. Postal Service, and if such plaintiff fails to 19 notify the Court and opposing parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the action 20 without prejudice for failure to prosecute. 21 “District courts have inherent power to control their dockets” and, in exercising that 22 power, may impose sanctions, including dismissal of an action. Thompson v. Housing Auth., City 23 of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action based on a 24 party’s failure to prosecute an action, obey a court order, or comply with local rules. See, e.g., 25 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with a 26 court order to amend a complaint); Malone v. U.S. Postal Service, 833 F.2d 128, 130-31 (9th Cir. 27 1987) (dismissal for failure to comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1 1424 (9th Cir. 1986) (dismissal for failure to prosecute and to comply with local rules). 2 “In determining whether to dismiss an action for lack of prosecution, the district court is 3 required to weigh several factors: (1) the public’s interest in expeditious resolution of litigation; 4 (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 5 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 6 sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (internal quotation marks & 7 citation omitted). These factors guide a court in deciding what to do and are not conditions that 8 must be met in order for a court to take action. In re Phenylpropanolamine (PPA) Products 9 Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (citation omitted). 10 Analysis 11 Here, Plaintiff’s address currently on file with the Court is: “Billy Howard, 2324590, Kern 12 County Jail, 17695 Industrial Farm Road, Bakersfield, CA 93308.” The minute order served to 13 that address on August 1, 2024, was returned by the United States Postal Service on August 12, 14 2024, marked “Undeliverable, Not in Custody.” Although more than 63 days have elapsed, 15 Plaintiff has not filed a notice of change of address or otherwise contacted the Court. Moreover, it 16 is apparent Plaintiff is aware of his obligation to keep his address current—he did so on four 17 previous occasions between August 2021 and September 2022. (See Docs. 10-12, 14 [notices of 18 change of address].) 19 Plaintiff’s failure to comply with Local Rules 182(f) and 183(b) to keep the Court 20 apprised of his current address weighs in favor of dismissal. Given the Court’s inability to 21 communicate with Plaintiff, there are no other reasonable alternatives available to address 22 Plaintiff’s failure to obey the Local Rules or his failure to prosecute this action. Thus, the first and 23 second factors — the expeditious resolution of litigation and the Court’s need to manage its 24 docket — weigh in favor of dismissal. Carey, 856 F.2d at 1440; Henderson, 779 F.2d at 1424. 25 The third factor, risk of prejudice to defendant, also weighs fairly in favor of dismissal 26 since a presumption of injury arises from the occurrence of unreasonable delay in prosecuting an 27 action. See Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). Here, Defendants have filed a 1 before filing suit. Defendants re-served their motion with the required Rand notice on August 1, 2 2024, to Plaintiff at his address of record (see Doc. 51), but Plaintiff has not responded to the 3 pending motion. This matter cannot proceed without Plaintiff’s participation and a presumption of 4 injury has arisen from Plaintiff’s unreasonable delay in prosecuting this action. Thus, the third 5 factor — a risk of prejudice to the defendants — also weighs in favor of dismissal. Carey, 856 6 F.2d at 1440. 7 The fourth factor usually weighs against dismissal because public policy favors 8 disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, 9 “this factor lends little support to a party whose responsibility it is to move a case toward 10 disposition on the merits but whose conduct impedes progress in that direction.” In re PPA, 460 11 F.3d at 1228. Plaintiff has not moved this case forward toward disposition on the merits. He has 12 instead stopped communicating with the Court altogether and has failed to comply with Local 13 Rules 182(f) and 183(b). Therefore, the fourth factor — the public policy favoring disposition of 14 cases on their merits — also weighs in favor of dismissal. Carey, 856 F.2d at 1440. 15 Finally, the Court’s warning to a party that failure to obey will result in dismissal satisfies 16 the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262. Here, in the First 17 Informational Order in Prisoner/Civil Detainee Civil Rights Case issued June 15, 2021, Plaintiff 18 was advised as follows: “In litigating this action, the parties must comply with this Order, the 19 Federal Rules of Civil Procedure (“Fed. R. Civ. P.”), and the Local Rules of the United States 20 District Court, Eastern District of California (“Local Rules”), as modified by this Order. Failure 21 to so comply will be grounds for imposition of sanctions which may include dismissal of the case. 22 Local Rule 110; Fed. R. Civ. P. 41(b).” (See Doc. 3 at 1.) That Order further advised: “A pro se 23 plaintiff must keep the Court and opposing parties informed of the party’s correct current address. 24 Local Rule 182(f). If a party moves to a different address without filing and serving a notice of 25 change of address, documents served at a party’s old address of record shall be deemed received 26 even if not actually received. … If mail directed to a pro se plaintiff at the address of record is 27 returned by the United States Postal Service as undeliverable, the order will not be re-served a 1 Referring Case to Post-Screening ADR issued November 9, 2023, the parties were advised, “The 2 parties are obligated to keep the Court informed of their current addresses during the stay and the 3 pendency of this action. Changes of address must be reported promptly in a Notice of Change of 4 Address. See L.R. 182(f).” (See Doc. 41 at 2.) And, as noted above, Plaintiff is aware of his 5 obligation given previous changes of address. (See Docs. 10-12, 14.) Thus, the undersigned finds 6 Plaintiff had adequate warning that dismissal could result from his noncompliance with this 7 Court’s Local Rules concerning his obligation to keep the Court apprised of his current address. 8 Accordingly, the fifth factor — the availability of less drastic sanctions —weighs in favor of 9 dismissal. Ferdik, 963 F.2d at 1262; Carey, 856 F.2d at 1440. 10 In sum, Plaintiff has failed to comply with this Court’s Local Rules, and in doing so, has 11 failed to prosecute this action. Whether Plaintiff has done so intentionally or mistakenly is 12 inconsequential. It is Plaintiff’s responsibility to comply with the Local Rules and to prosecute 13 this action. The Court declines to expend its limited resources on a case that Plaintiff has chosen 14 to ignore. 15 III. CONCLUSION AND RECOMMENDATION 16 Accordingly, for the reasons given above, the Court RECOMMENDS that this action be 17 dismissed, without prejudice, based on Plaintiff’s failure to obey the Local Rules and to prosecute 18 this action. 19 These Findings and Recommendations will be submitted to the United States District 20 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 21 after being served with a copy of these Findings and Recommendations, a party may file written 22 objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to 23 Magistrate Judge’s Findings and Recommendations” and shall not exceed 15 pages without 24 leave of Court and good cause shown. The Court will not consider exhibits attached to the 25 Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference the 26 exhibit in the record by its CM/ECF document and page number, when possible, or otherwise 27 reference the exhibit with specificity. Any pages filed in excess of the 15-page limitation may be 1 | US.C. § 636(b)(1)(C). A party’s failure to file any objections within the specified time may result 2 | in the waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 3 | 2014). 4 | IT IS SO ORDERED. ° Dated: _ October 15, 2024 | Word bo 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28