1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CANDACE SMITH, Case No. 1:24-cv-00586-KES-HBK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO

DISMISS CASE WITHOUT PREJUDICE FOR

13 v. FAILURE TO PROSECUTE UNDER LOCAL RULES 183, 110 and/or FEDERAL RULE OF 14 WEST COAST HOTEL MANAGEMENT CIVIL PROCEDURE 41(b) LLC, et al., 15 (Doc. No. 1) Defendants. 16 14-DAY DEADLINE 17

18 19 20 Plaintiff Candace Smith initiated this action by filing a pro se civil rights complaint on 21 May 16, 2024. (Doc. No. 1, “Complaint”). For the reasons set forth below, the undersigned 22 recommends that the District Court dismiss this action consistent with the Court’s Local Rules for 23 Plaintiff’s failure to prosecute this action and Federal Rule of Civil Procedure 41(b). Specifically, 24 Plaintiff failed to keep the Court apprised of a current address, failed to respond to the Court’s 25 screening order, and this action remains stagnant. 26 BACKGROUND 27 On July 1, 2024, the undersigned issued an order recalling the Findings and 28 Recommendations issued June 21, 2024, and granted Plaintiff’s motion to proceed in forma 1 pauperis. (Doc. No. 6). On August 14, 2024, the Court issued a Screening Order finding the 2 complaint failed to state a claim. (Doc. No. 7). The Court afforded pro se Plaintiff the 3 opportunity to correct the identified deficiencies and file an amended complaint no later than 4 September 9, 2024. (Id. at 5). On September 3, 2024, the July 1, 2024 Order was returned 5 “Undeliverable, Return to Sender, Not Deliverable as Addressed, Unable to Forward.” See 6 docket. Plaintiff’s change of address was due no later than November 5, 2024. Local Rule 7 183(b). Plaintiff has not filed an updated address as required by Local Rule 182(f) and the time to 8 do so has expired. See docket. Further, Plaintiff has not filed an amended complaint as directed 9 by the Court in its August 14, 2024 Screening Order.1 10 APPLICABLE LAW AND ANALYSIS 11 1. Local Rule 183 12 Plaintiff was obligated to keep this Court informed of her proper address. Specifically: 13 [a] party appearing in propria persona shall keep the Court and opposing parties advised as to his or her current address. If mail 14 directed to a plaintiff in propria persona by the Clerk is returned by the U.S. Postal Service, and if such plaintiff fails to notify the Court 15 and opposing parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without prejudice 16 for failure to prosecute. 17 Local Rule 183(b); see also Local Rule 182(f) (all parties are “under a continuing duty” to notify 18 the clerk of “any change of address[.]”). Precedent supports a dismissal of a case when a litigant 19 does not keep the court appraised on his address. Carey v. King, 856 F.2d 1439 (9th Cir. 1988) 20 (affirming lower court and finding no abuse of discretion when district court dismissed case 21 without prejudice after pro se plaintiff did not comply with local rule requiring pro se plaintiffs 22 keep court apprised of addresses at all times); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th 23 Cir. 1986) (dismissal proper for failure to prosecute and comply with local rules of court); Hanley 24 v. Opinski, 2018 WL 3388510 (E.D. Ca. July 10, 2018) (dismissing action for failure to prosecute 25 and to provide court with current address); Davis v. Kern Valley State Prison, 2023 WL 2992980, 26 at *1, n. 1 (E.D. Cal. Apr. 18, 2023). More than sixty-three (63) days have passed since the 27 1 Inexplicably, the later issued August 14, 2024 Screening Order was not returned as undeliverable. (See 28 docket). 1 Court’s July 1, 2024 Order was returned as undeliverable, and Plaintiff has not filed a notice of 2 change of address.2 3 2. Federal Rule of Civil Procedure 41(b) and Local Rule 110 4 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action 5 when a litigant fails to prosecute an action or fails to comply with other Rules or with a court 6 order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 7 (9th Cir. 2019) (citations omitted). Similarly, this Court’s Local Rules, which correspond with 8 Federal Rule of Civil Procedure 11, provide, “[f]ailure of counsel or of a party to comply with … 9 any order of the Court may be grounds for the imposition by the Court of any and all sanctions … 10 within the inherent power of the Court.” E.D. Cal. L.R. 110. “District courts have inherent power 11 to control their dockets” and, in exercising that power, may impose sanctions, including dismissal 12 of an action. Thompson v. Housing Auth., City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). 13 A court may dismiss an action based on a party’s failure to prosecute an action, obey a court 14 order, or comply with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 15 1992) (dismissal for failure to comply with a court order to amend a complaint); Malone v. U.S. 16 Postal Service, 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to comply with a court 17 order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to 18 prosecute and to comply with local rules). In determining whether to dismiss an action, the Court 19 must consider the following factors: (1) the public’s interest in expeditious resolution of 20 litigation; (2) the Court’s need to manage its docket; (3) the risk of prejudice to the defendants; 21 (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less 22 drastic sanctions. Henderson, 779 F.2d at 1423; Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 23 1988). 24 After considering each of the above-stated factors, the undersigned concludes dismissal 25 without prejudice is warranted in this case. As to the first factor, the expeditious resolution of 26 litigation is deemed to be in the public interest, satisfying the first factor. Yourish v. California 27 2 As of the date of these Findings and Recommendations sixty-five (65) days have passed since the mail 28 was returned as undeliverable. 1 Amplifier, 191 F.3d 983, 990-91 (9th Cir. 1999). 2 Turning to the second factor, this Court’s need to efficiently manage its docket cannot be 3 overstated. This Court has “one of the heaviest caseloads in the nation,” and due to the delay in 4 filling judicial vacancies, which was further exacerbated by the Covid-19 pandemic, operates 5 under a declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 6 Emergency in the Eastern District of California. This Court’s time is better spent on its other 7 matters than needlessly consumed managing a case with a recalcitrant litigant. The Court cannot 8 effectively manage its docket when a litigant ceases to litigate his/her case or respond to a court 9 order. Thus, the Court finds that the second factor weighs in favor of dismissal. 10 Delays inevitably have the inherent risk that evidence will become stale or witnesses’ 11 memories will fade or be unavailable and can prejudice a defendant, thereby satisfying the third 12 factor. See Sibron v. New York, 392 U.S. 40, 57 (1968). Thus, the third factor—risk of prejudice 13 to defendant—weighs in favor of dismissal since a presumption of injury arises from the 14 unreasonable delay in prosecuting an action. Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 15 1976). Because Plaintiff’s inaction amounts to an unreasonable delay in prosecuting this action, 16 the third factor weighs in favor of dismissal. 17 The fourth factor usually weighs against dismissal because public policy favors the 18 disposition of cases on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). 19 However, “this factor lends little support to a party whose responsibility it is to move a case 20 toward disposition on the merits but whose conduct impedes progress in that direction,” which is 21 the case here. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 22 1228 (9th Cir. 2006) (citation omitted). Indeed, “trial courts do not have time to waste on 23 multiple failures by aspiring litigants to follow the rules and requirements of our courts.” 24 Pagtalunan v. Galaza, 291 F.3d 639, 644 (9th Cir. 2002) (Trott, J., concurring in affirmance of 25 district court’s involuntary dismissal with prejudice of habeas petition where petitioner failed to 26 timely respond to court order and noting “the weight of the docket-managing factor depends upon 27 the size and load of the docket, and those in the best position to know what that is are our 28 beleaguered trial judges.”). Further, as set forth in the August 14, 2024 Screening Order, the 1 Court already determined that the Complaint was not meritorious, so this factor does not weigh in 2 favor of the Plaintiff. 3 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 4 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 5 Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The Court’s August 14, 2024 6 Screening Order expressly warned Plaintiff that her failure to comply with the Court’s order 7 would result in a recommendation for dismissal of this action. (Doc. 7 at 6-7, ¶2). Thus, Plaintiff 8 had adequate warning that dismissal could result from her noncompliance. And the instant 9 dismissal is a dismissal without prejudice, which is a lesser sanction than a dismissal with 10 prejudice, thereby satisfying the fifth factor. 11 After considering the factors set forth supra and binding case law, the undersigned 12 alternatively recommends dismissal, without prejudice, under Fed. R. Civ. P. 41(b) and Local 13 Rule 110. 14 Accordingly, it is RECOMMENDED: 15 This case be dismissed without prejudice pursuant to Local Rule 183(b) and/or Local Rule 16 110 and Federal Rule Civil Procedure 41(b) for Plaintiff’s failure to prosecute this action. 17 NOTICE TO PARTIES 18 These Findings and Recommendations will be submitted to the United States District 19 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 20 after being served with a copy of these Findings and Recommendations, a party may file written 21 objections with the Court. Id.; Local Rule 304(b). The document should be captioned, 22 “Objections to Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen 23 (15) pages. The Court will not consider exhibits attached to the Objections. To the extent a party 24 wishes to refer to any exhibit(s), the party should reference the exhibit in the record by its 25 CM/ECF document and page number, when possible, or otherwise reference the exhibit with 26 specificity. Any pages filed in excess of the fifteen (15) page limitation may be disregarded by 27 the District Judge when reviewing these Findings and Recommendations under 28 U.S.C. § 28 636(b)(l)(C). A party’s failure to file any objections within the specified time may result in the 1 | waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014). 2 3 Dated: _ November 7, 2024 ooo. Th. Bareh Hack 4 HELENA M. BARCH-KUCHTA ; 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