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7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA

10 11 RICHARD TETSUO OSAKI, Case No. 5:23-cv-00121-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 On December 29, 2022, plaintiff Richard Tetsuo Osaki (“Plaintiff”), an 20 inmate proceeding pro se and in forma pauperis (“IFP”), constructively filed1 a 21 Complaint (“Complaint” or “Compl.”) alleging civil rights violations pursuant to 22 42 U.S.C. § 1983 against defendants San Bernardino County Sheriff Department, 23 West Valley Detention Center, Arrowhead Regional Medical Center, and various 24 individual defendants (collectively, “Defendants”). Electronic Case Filing Number 25 (“ECF No.”) 1, Compl. at 1, 3-4.

26 / / / 27 1 Under the “mailbox rule,” when a pro se prisoner gives prison authorities a pleading to mail to 1 On June 6, 2023, the Court dismissed the Complaint with leave to amend 2 (“ODLA”) and the Clerk of Court mailed the ODLA to Plaintiff at Plaintiff’s 3 address of record. ECF No. 10, ODLA. On June 16, 2023, the United States 4 Postal Service (“USPS”) returned the ODLA as “Return to Sender/ Not in 5 Custody” (“First Returned Mail”). ECF No. 11, First Returned Mail. 6 On July 10, 2023, the Court ordered (“Order”) Plaintiff to “notify the Court, 7 in writing, on or before July 20, 2023, of his current address[,]” and warned that 8 failure to do so “will result in a recommendation that this action be dismissed 9 for failure to prosecute.” ECF No. 12, Order at 1 (emphasis in original). On July 10 21, 2023, the USPS returned the Order as “Return to Sender Not in Custody” 11 (“Second Returned Mail”). ECF No. 13, Second Returned Mail. 12 As of the date of this order, Plaintiff has not updated the Court with his 13 current mailing address as ordered or otherwise participated in this litigation. 14 Consequently, the Court has conducted an independent search of the San 15 Bernardino County Sheriff’s Department (“SBCSD”) inmate locator website, 16 which indicates that Plaintiff’s “Booking [number is] Not Found or Inmate may 17 not be in custody.” See https://wp.sbcounty.gov/sheriff/corrections/inmate-locator/ 18 (last accessed July 27, 2023). 19 II. LEGAL STANDARDS 20 A. Duty to Update Address 21 Local Rule of Civil Procedure for the United States District Court for the 22 Central District of California (“Local Rules” or “L.R.”) 41-6 requires a pro se party 23 to keep the Court and opposing parties apprised of the party’s current address, 24 telephone number, and e-mail address, if any. L.R. 41-6. If mail directed by the 25 Clerk of Court to a pro se plaintiff’s address of record is returned undelivered by 26 the USPS “and the pro se party has not filed a notice of change of address within 27 14 days of the service date of the order or other Court document, the Court may 1 B. Dismissal for Failure to Prosecute and Follow Orders 2 District courts have sua sponte authority to dismiss actions for failure to 3 prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. 4 Wabash R.R. Co., 370 U.S. 626, 629-30 (1962); Hells Canyon Pres. Council v. 5 U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating courts may dismiss an 6 action under Federal Rule of Civil Procedure (“Rule”) 41(b) sua sponte for a 7 plaintiff’s failure to prosecute or comply with the Federal Rules of Civil Procedure 8 or the court’s orders); Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) 9 (affirming district court’s dismissal for failure to comply with court orders). 10 In deciding whether to dismiss for failure to prosecute or comply with court 11 orders, a district court must consider five factors: “(1) the public’s interest in 12 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) 13 the risk of prejudice to the defendants; (4) the public policy favoring disposition of 14 cases on their merits; and (5) the availability of less drastic sanctions.” Henderson 15 v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); see also Pagtalunan v. Galaza, 16 291 F.3d 639, 642 (9th Cir. 2002) (setting out similar five factors as in Henderson). 17 “Dismissal is appropriate ‘where at least four factors support dismissal, or where at 18 least three factors ‘strongly’ support dismissal.’” Neal v. Reslan, No. CV 19- 19 09291 PA (ASx), 2020 WL 754366, at *1 (C.D. Cal. Jan. 16, 2020) (quoting 20 Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (internal 21 citations omitted) (citing Ferdik, 963 F.2d at 1263)). In a case involving sua 22 sponte dismissal, however, the fifth Henderson factor regarding the availability of 23 less drastic sanctions warrants special focus. Hernandez, 138 F.3d at 399. 24 II. DISCUSSION 25 Here, the case is subject to dismissal for the following two reasons. First, 26 based on the First and Second Returned Mail and the Court’s independent check of 27 the SBCSD inmate locator website, of which the Court takes judicial notice, it 1 Plaintiff has failed to provide his current address to the Court in violation of Local 2 Rule 41-6. See United States v. Basher, 629 F.3d 1161, 1165 n.2 (9th Cir. 2011) 3 (taking judicial notice of Bureau of Prisons inmate locator that is available to the 4 public); see also Pacheco v. Diaz, Case No. 1:19-cv-00774-SAB (PC), 2019 WL 5 5073594, at *2 (E.D. Cal. Sept. 4, 2019) (taking judicial notice of California 6 Department of Corrections and Rehabilitation’s inmate locator system); McCoy v. 7 Le, No. 3:21-CV-1755-BAS-LL, 2021 WL 5449004, at *1 n.2 (S.D. Cal. Nov. 22, 8 2021) (same); Louis v. McCormick & Schmick Restaurant Corp., 460 F. Supp. 2d 9 1153, 1155 n.4 (C.D. Cal. 2006) (finding that under Federal Rule of Evidence 201, 10 the Court may take judicial notice of, in relevant part, state agency records). 11 Consequently, the Court is unable to move this case toward disposition 12 without Plaintiff’s current contact information, as evidenced by Plaintiff’s lack of 13 participation in this matter. Accordingly, because Plaintiff’s address of record 14 appears to have been invalid for longer than the fourteen-day grace period 15 contemplated in Local Rule 41-6, and because the Court’s inability to reach 16 Plaintiff is hindering the Court’s ability to resolve this case, the Court DISMISSES 17 this case, without prejudice, pursuant to Local Rule 41-6, for the first reason that 18 Plaintiff has failed to keep the Court apprised of his current address. 19 Second, and relatedly, this case is subject to dismissal for Plaintiff’s failure 20 to prosecute and follow Court orders. Specifically, the first two Henderson 21 factors—public interest in expeditious resolution of litigation and the Court’s need 22 to manage its docket—weigh in favor of dismissal. Despite ordering Plaintiff to 23 update the Court with his current mailing address, Plaintiff has failed to do so or to 24 indicate to the Court in any way that he intends to continue pursuing this action. 25 This failure to prosecute and follow Court orders hinders the Court’s ability to 26 move this case toward disposition and suggests that Plaintiff does not intend to 27 litigate this action diligently. 1 The third factor—prejudice to Defendants—also weighs in favor of 2 dismissal. A rebuttable presumption of prejudice to a defendant arises when a 3 plaintiff unreasonably delays prosecution of an action. See In re Eisen, 31 F.3d 4 1447, 1452-53 (9th Cir. 1994) (citations omitted). Here, Plaintiff has not offered 5 any excuse for his failure to comply with the Court’s Orders and respond in a 6 timely manner and this “prejudice” element thus favors dismissal. 7 The fourth factor—public policy in favor of deciding cases on the merits— 8 ordinarily weighs against dismissal. However, it is Plaintiff’s responsibility to 9 move litigation towards disposition at a reasonable pace and to avoid dilatory and 10 evasive tactics. See Morris v. Morgan Stanley, 942 F.2d 648, 652 (9th Cir. 1991). 11 Plaintiff has not met this responsibility despite having been: (1) instructed on his 12 responsibilities; (2) granted sufficient time in which to discharge them; and (3) 13 warned of the consequences of failure to do so. Under these circumstances, though 14 this policy favors Plaintiff, it does not outweigh Plaintiff’s failure to obey Court 15 orders or to file responsive documents within the time granted. 16 The fifth factor—availability of less drastic sanctions—also weighs in favor 17 of dismissal. The Court cannot move the case toward disposition without 18 Plaintiff’s compliance with Court orders or participation in this litigation. Despite 19 the Court’s attempt to obtain a response, Plaintiff has shown he is either unwilling 20 or unable to comply with Court orders by failing to provide his current address to 21 the Court or otherwise cooperate in prosecuting this action. The Court is not aware 22 of any lesser sanction that is available in this case. See Henderson, 779 F.2d at 23 1424 (“The district court need not exhaust every sanction short of dismissal before 24 finally dismissing a case but must explore possible and meaningful alternatives.”) 25 (citation omitted); Roman v. Smith, No. 2:18-07909 PA (ADS), 2019 WL 26 8013120, at *1 (C.D. Cal. Nov. 18, 2019). 27 / / / 1 Accordingly, because it appears that Plaintiff has abandoned this litigation, 2 | and because Plaintiff has defied Court orders and failed to comply with the Local 3 | Rules, the Court DISMISSES this case, without prejudice, for this second reason. 4 HI. ORDER 5 Based on the foregoing, IT IS HEREBY ORDERED that Judgment be 6 | entered DISMISSING this case without prejudice. 7 g DATED: August 8, 2023 HONORABLE FERNANDO MCOLGUIN- 9 United States District Judge 10 iH Presented by: 12 Bp ete 13 | United States Magistrate udge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28