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7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA

10 11 RICHARD TETSUO OSAKI, Case No. 5:21-cv-00567-FMO-SHK 12 Plaintiff,

ORDER DISMISSING COMPLAINT

13 v. 14 THE SAN BERNARDINO COUNTY 15 SHERIFF DEPARTMENT, et al., 16 Defendants. 17 18 I. BACKGROUND 19 The operative complaint in this matter is Plaintiff Richard Osaki’s 20 (“Plaintiff”) Third Amended Complaint (“TAC”) filed on March 1, 2023. 21 Electronic Case Filing Number (“ECF No.”) 27, TAC. On May 26, 2023, the 22 Court issued a Report and Recommendation (“R&R”) and a Notice of Filing 23 Report and Recommendation (“R&R Notice”), ECF Nos. 30, 31, and mailed the 24 documents to Plaintiff at Plaintiff’s last known address of record. On June 9, 2023, 25 the United States Postal service (“USPS”) returned the R&R and R&R Notice to 26 the Court (“Return Mail”) with a notation stating, “Return to Sender/ Not in 27 Custody.” ECF Nos. 32, 33. 1 On June 27, 2023, the Court issued an order (“Order”) notifying Plaintiff 2 that “[b]ased on the recent return[ed] mail, the Court suspects that Plaintiff failed 3 to properly inform the Court of his updated address” in violation of Local Rule of 4 Civil Procedure for the United States District Court for the Central District of 5 California (“Local Rule” or “L.R.”) 41-6. ECF No. 34, Order. Plaintiff was 6 ordered to “notify the Court, in writing, on or before July 11, 2023, of his current 7 address[]” and was warned that “failing to update his current address by the 8 foregoing deadline will result in a recommendation that this action be 9 dismissed for failure to prosecute.” Id. at 1 (emphasis in original). 10 As of the date of this Order, Plaintiff has failed to update the Court with his 11 current address as ordered or to otherwise participate in this action in any way. 12 Consequently, the Court has conducted an independent search of the San 13 Bernardino County Sheriff’s Department (“SBCSD”) inmate locator website, 14 which indicates that Plaintiff’s “Booking [number is] Not Found or Inmate may 15 not be in custody.” See https://wp.sbcounty.gov/sheriff/corrections/inmate-locator/ 16 (last accessed July 12, 2023). 17 II. LEGAL STANDARDS 18 A. Duty to Update Address 19 Local Rule 41-6 requires a pro se party to keep the Court and opposing 20 parties apprised of the party’s current address, telephone number, and e-mail 21 address, if any. L.R. 41-6. If mail directed by the Clerk of Court to a pro se 22 plaintiff’s address of record is returned undelivered by the USPS “and the pro se 23 party has not filed a notice of change of address within 14 days of the service date 24 of the order or other Court document, the Court may dismiss the action with or 25 without prejudice for failure to prosecute.” Id. 26 B. Dismissal for Failure to Prosecute and Follow Orders 27 District courts have sua sponte authority to dismiss actions for failure to 1 Wabash R.R. Co., 370 U.S. 626, 629-30 (1962); Hells Canyon Pres. Council v. 2 U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating courts may dismiss an 3 action under Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s 4 failure to prosecute or comply with the Federal Rules of Civil Procedure or the 5 court’s orders); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (ordering 6 dismissal for failure to comply with court orders). 7 In deciding whether to dismiss for failure to prosecute or comply with court 8 orders, a district court must consider five factors: “(1) the public’s interest in 9 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) 10 the risk of prejudice to the defendants; (4) the public policy favoring disposition of 11 cases on their merits; and (5) the availability of less drastic sanctions.” Henderson 12 v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); see also Pagtalunan v. Galaza, 13 291 F.3d 639, 642 (9th Cir. 2002) (setting out similar five factors as in Henderson). 14 “Dismissal is appropriate ‘where at least four factors support dismissal, or where at 15 least three factors ‘strongly’ support dismissal.’” Neal v. Reslan, No. CV 19- 16 09291 PA (ASx), 2020 WL 754366, at *1 (C.D. Cal. Jan. 16, 2020) (quoting 17 Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (internal 18 citations omitted) (citing Ferdik, 963 F.2d at 1263)). In a case involving sua 19 sponte dismissal, however, the fifth Henderson factor regarding the availability of 20 less drastic sanctions warrants special focus. Hernandez, 138 F.3d at 399. 21 III. DISCUSSION 22 Here, the case is subject to dismissal for the following two reasons. First, 23 based on the Returned Mail and the Court’s independent check of the SBCSD 24 inmate locator website, which the Court takes judicial notice of, it appears that 25 Plaintiff is no longer incarcerated at his address of record and that Plaintiff has 26 failed to provide his current address to the Court in violation of Local Rule 41-6. 27 See United States v. Basher, 629 F.3d 1161, 1165 n.2 (9th Cir. 2011) (taking 1 see also Pacheco v. Diaz, Case No. 1:19-cv-00774-SAB (PC), 2019 WL 5073594, 2 at *2 (E.D. Cal. Sept. 4, 2019) (taking judicial notice of California Department of 3 Corrections and Rehabilitation’s inmate locator system); McCoy v. Le, No. 3:21- 4 CV-1755-BAS-LL, 2021 WL 5449004, at *1 n.2 (S.D. Cal. Nov. 22, 2021) (same); 5 Louis v. McCormick & Schmick Restaurant Corp., 460 F. Supp. 2d 1153, 1155 n.4 6 (C.D. Cal. 2006) (finding that under Federal Rule of Evidence 201, the Court may 7 take judicial notice of, in relevant part, state agency records). 8 Consequently, the Court is unable to move this case toward disposition 9 without Plaintiff’s current contact information, as evidenced by Plaintiff’s lack of 10 participation in this matter. Accordingly, because Plaintiff’s address of record 11 appears to have been invalid for longer than the fourteen-day grace period 12 contemplated in Local Rule 41-6, and because the Court’s inability to reach 13 Plaintiff is hindering the Court’s ability to resolve this case, the Court DISMISSES 14 this case, without prejudice, pursuant to Local Rule 41-6, for the first reason that 15 Plaintiff has failed to keep the Court apprised of his current address. 16 Second, and relatedly, this case is subject to dismissal for Plaintiff’s failure 17 to prosecute and follow Court orders. Specifically, the first two Henderson 18 factors—public interest in expeditious resolution of litigation and the Court’s need 19 to manage its docket—weigh in favor of dismissal. Despite ordering Plaintiff to 20 update the Court with his current mailing address, Plaintiff has failed to do so or to 21 indicate to the Court in any way that he intends to continue pursuing this action. 22 This failure to prosecute and follow Court orders hinders the Court’s ability to 23 move this case toward disposition and suggests that Plaintiff does not intend to 24 litigate this action diligently. 25 The third factor—prejudice to Defendants—also weighs in favor of 26 dismissal. A rebuttable presumption of prejudice to a defendant arises when a 27 plaintiff unreasonably delays prosecution of an action. See In re Eisen, 31 F.3d 1 any excuse for his failure to comply with the Court’s Orders and respond in a 2 timely manner and this “prejudice” element thus favors dismissal. 3 The fourth factor—public policy in favor of deciding cases on the merits— 4 ordinarily weighs against dismissal. However, it is Plaintiff’s responsibility to 5 move litigation towards disposition at a reasonable pace and to avoid dilatory and 6 evasive tactics. See Morris v. Morgan Stanley, 942 F.2d 648, 652 (9th Cir. 1991). 7 Plaintiff has not met this responsibility despite having been: (1) instructed on his 8 responsibilities; (2) granted sufficient time in which to discharge them; and (3) 9 warned of the consequences of failure to do so. Under these circumstances, though 10 this policy favors Plaintiff, it does not outweigh Plaintiff’s failure to obey Court 11 orders or to file responsive documents within the time granted. 12 The fifth factor—availability of less drastic sanctions—also weighs in favor 13 of dismissal. The Court cannot move the case toward disposition without 14 Plaintiff’s compliance with Court orders or participation in this litigation. Despite 15 the Court’s attempt to obtain a response, Plaintiff has shown he is either unwilling 16 or unable to comply with Court orders by failing to provide his current address to 17 the Court or otherwise cooperate in prosecuting this action. The Court is not aware 18 of any lesser sanction that is available in this case. See Henderson, 779 F.2d at 19 1424 (“The district court need not exhaust every sanction short of dismissal before 20 finally dismissing a case but must explore possible and meaningful alternatives.”) 21 (citation omitted); Roman v. Smith, No. 2:18-07909 PA (ADS), 2019 WL 22 8013120, at *1 (C.D. Cal. Nov. 18, 2019). 23 Accordingly, because it appears that Plaintiff has abandoned this litigation, 24 and because Plaintiff has defied Court orders and failed to comply with the Local 25 Rules, the Court DISMISSES this case, without prejudice, for this second reason. 26 / / / 27 / / / 1 I. ORDER 2 Based on the foregoing, IT IS HEREBY ORDERED that Judgment be 3 | entered DISMISSING this case without prejudice. 4 5 | DATED: July 31, 2023 /s/ 6 United States District ndge 7 8 | Presented by: KA ee 10 | HON. SHASHITH. KEWALRAMANI. United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28