1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MATTHEW VAN DYKE, No. 2:19-cv-01900-TLN-KJN PS 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS

AND ORDER

14 SACRAMENTO POLICE

DEPARTMENT,

15 Defendant. 16 17 Plaintiff filed the present action against a single defendant, the Sacramento Police 18 Department. (ECF No. 7.) On November 21, 2019, the court granted plaintiff’s request to 19 proceed in forma pauperis and directed him, within 30 days, to supply the Marshal with necessary 20 forms to effectuate service. (ECF No. 9.) Plaintiff was ordered to file a statement with the court 21 that these forms were sent to the Marshal within 10 days of submission. (Id.) The court also set a 22 status conference in this case for April 2, 2020. (ECF No. 11.) The parties were ordered, within 23 7 days of the conference, to file status reports with the court. (Id.) All of these deadlines have 24 passed and plaintiff has failed to file any of the required documents. On March 27, 2020, the 25 court ordered plaintiff, within 14 days, to show cause in writing as to why this action should not 26 be dismissed due to plaintiff’s failure to comply with court orders and failure to prosecute this 27 matter. Plaintiff has not responded to this order. Thus, the court RECOMMENDS dismissal for 28 failure to prosecute. 1 DISCUSSION 2 Eastern District Local Rule 183(a) provides, in part: 3 Any individual representing himself [] without an attorney is bound by the Federal Rules of Civil or Criminal Procedure, these Rules, and all other applicable law. 4 All obligations placed on “counsel” by these Rules apply to individuals appearing in propria persona. Failure to comply therewith may be ground for dismissal, 5 judgment by default, or any other sanction appropriate under these Rules. 6 See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the 7 same rules of procedure that govern other litigants”) (overruled on other grounds). A district 8 court may impose sanctions, including involuntary dismissal of a plaintiff’s case pursuant to 9 Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her case or 10 fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s local 11 rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act 12 sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. U.S. 13 Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating that courts may dismiss an action 14 pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute 15 or comply with the rules of civil procedure or the court’s orders); Ghazali v. Moran, 46 F.3d 52, 16 53 (9th Cir. 1995) (per curiam) (“Failure to follow a district court’s local rules is a proper ground 17 for dismissal.”); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (“Pursuant to Federal 18 Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with 19 any order of the court.”); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th 20 Cir. 1986) (per curiam) (stating that district courts have inherent power to control their dockets 21 and may impose sanctions including dismissal or default). 22 A court must weigh five factors in determining whether to dismiss a case for failure to 23 prosecute, failure to comply with a court order, or failure to comply with a district court’s local 24 rules. See, e.g., Ferdik, 963 F.2d at 1260. Specifically, the court must consider: 25 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to 26 the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives. 27

28 1 Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002). 2 Here, the first two factors weigh in favor of dismissal, because this case has already been 3 delayed by plaintiff’s failure to take the steps necessary to move this case forward. The third 4 factor also slightly favors dismissal, because, at a minimum, defendant has been deprived of an 5 opportunity to prepare its defense. With the passage of time, witnesses’ memories fade and 6 evidence becomes stale. 7 Furthermore, the fifth factor, availability of less drastic alternatives, favors dismissal, 8 because the court has already attempted less drastic alternatives. Specifically, the court, 9 cognizant of plaintiff’s pro se status and in lieu of dismissal, ordered plaintiff to respond as to 10 why this matter should not be dismissed. (ECF No. 13.) The court specifically instructed 11 plaintiff that his failure to respond would result in a recommendation for dismissal. (Id.) Further, 12 the court’s mail was returned as undeliverable, and plaintiff has not informed the court of any 13 change of address. See L.R. 182(f) (imputing a duty on parties to notify the court and parties of 14 any change of address). Simply, plaintiff has been incommunicado since he filed his first 15 amended complaint, leaving the court with little alternative but to recommend dismissal. 16 Finally, as to the fourth factor, the public policy favoring disposition of cases on their 17 merits, that factor is outweighed by the other Ferdik factors. Indeed, it is plaintiff’s own failure to 18 prosecute the case and comply with the rules that precludes a resolution on the merits. 19 CONCLUSION 20 Therefore, after carefully evaluating the Ferdik factors, the court concludes that dismissal 21 is appropriate. 22 Accordingly, IT IS HEREBY RECOMMENDED that: 23 1. The action be dismissed pursuant to Federal Rule of Civil Procedure 41(b); and 24 2. The Clerk of Court be directed to close this case. 25 In light of those recommendations, IT IS ALSO HEREBY ORDERED that all pleading, 26 discovery, and motion practice in this action are stayed pending resolution of the findings and 27 recommendations. With the exception of objections to the findings and recommendations and 28 any non-frivolous motions for emergency relief, the court will not entertain or respond to any wOAOe 2 LUV VEU PEIN INGEN VUE POO I AY Tt

1 | motions and other filings until the findings and recommendations are resolved. 2 These findings and recommendations are submitted to the United States District Judge 3 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 4 | days after being served with these findings and recommendations, any party may file written 5 | objections with the court and serve a copy on all parties. Such a document should be captioned 6 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 7 | shall be served on all parties and filed with the court within fourteen (14) days after service of the 8 | objections. The parties are advised that failure to file objections within the specified time may 9 | waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 10 | Cir. 1998); Martinez v. YIst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 11 IT IS SO ORDERED AND RECOMMENDED. 12 | Dated: May 4, 2020 3 Fensbl A Abar 14 KENDALL J. NE 1900.F&R ftp UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28