1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JEREMY MICHAEL GARDNER, No. 1:17-cv-01369-DAD-HBK 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO

DISMISS CASE WITHOUT PREJUDICE1

13 v.

OBJECTIONS DUE IN FOURTEEN DAYS2

14 P.BOLES, Custodial Officer at Stanislaus County Mens Jail, 15 Defendant. 16 17 18 This matter comes before the court upon periodic review of the file. As more fully set 19 forth below, the undersigned recommends the court dismiss this case without prejudice due to 20 plaintiff’s failure to update his address of record and prosecute this case. 21 I. FACTS AND BACKGROUND 22 Plaintiff Jeremy Michael Gardner is a former state prisoner proceeding pro se and in 23 forma pauperis on his civil rights complaint filed under 42 U.S.C. § 1983 on October 12, 2017. 24 (Doc. Nos. 1, 13). This matter was reassigned to the undersigned on November 17, 2020. (Doc. 25 No. 42). On February 4, 2021, the court denied plaintiff’s then pending motion to compel as 26 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 27 (E.D. Ca. 2019). 2 Due to the age of this case and because plaintiff is no longer incarcerated, he is subject to a 14-day 28 objection period pursuant to Local Rule 304(b). (E.D. Ca. 2019). 1 moot. (Doc. No. 43). A copy of that order sent to plaintiff was returned as “Undeliverable, Not 2 in Custody” on February 22, 2021. (See docket). On April 7, 2021, the court set this matter for a 3 status conference to be held on May 7, 2021, and further directed the parties to contact the court 4 to receive the video conference link. (Doc. No. 44). Plaintiff failed to contact the court to obtain 5 the video conference link and the court consequently vacated the conference. (Doc. No. 45). On 6 May 12, 2021, the April 7, 2021 order was returned as undeliverable. (See docket). Plaintiff’s 7 notice of change of address was due by May 3, 2021. E.D. Cal. Loc. R. 183(b) (2019). Plaintiff 8 has not updated his address as of the date of these findings and recommendations. 9 II. APPLICABLE LAW 10 This court’s Local Rules require litigants to keep the court apprised of their current 11 address, specifically providing: 12 “[a] party appearing in propria persona shall keep the Court and opposing parties advised as to his or her current address. If mail 13 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 14 and opposing parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without prejudice 15 for failure to prosecute.” 16 E.D. Cal. Loc. R. 183(b) (2019). Federal Rule of Civil Procedure 41(b) permits the court 17 to involuntarily dismiss an action when a litigant fails to prosecute an action or fails to comply 18 with other Rules or with a court order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. 19 Lichtenegger, 913 F.3d 884, 889 (9th Cir. 2019) (citations omitted); Hells Canyon Pres. Council 20 v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (“[T]he consensus among our sister 21 circuits, with which we agree, is that courts may dismiss under Rule 41(b) sua sponte, at least 22 under certain circumstances.”). Local Rule 110 similarly permits the court to impose sanctions 23 on a party who fails to comply with the court’s Rules or any order of court. Precedent supports a 24 dismissal of a case when a litigant fails to keep the court appraised on his address. Carey v. King, 25 856 F.2d 1439 (9th Cir. 1988) (affirming lower court and finding no abuse of discretion when 26 district court dismissed case without prejudice after pro se plaintiff did not comply with local rule 27 requiring pro se plaintiffs keep court apprised of addresses at all times); Hanley v. Opinski, Case 28 No. 1:16-cv-391-DAD-SAB, 2018 WL 3388510 (E.D. Ca. July 10, 2018) (dismissing action for 1 failure to prosecute and failure to provide court with current address). 2 Before dismissing an action under Fed. R. Civ. P. 41, the court must consider: (1) the 3 public interest in expeditious resolution of litigation; (2) the court’s need to manage a docket; (3) 4 the risk of prejudice to defendant; (4) public policy favoring disposition on the merits; (5) the 5 availability of less drastic sanctions. See Applied Underwriters, 913 F.3d at 889 (noting that 6 these five factors “must” be analyzed before a Rule 41 involuntary dismissal) (emphasis added); 7 Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (reviewing five factors and 8 independently reviewing the record because district court did not make finding as to each factor); 9 but see Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000) (listing the same five 10 factors, but noting the court need not make explicit findings as to each) (emphasis added); Ferdik 11 v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (affirming dismissal of pro se 1983 action when 12 plaintiff did not amend caption to remove “et al” as the court directed and reiterating that an 13 explicit finding of each factor is not required by the district court). 14 III. ANALYSIS 15 The undersigned considers each of the above-stated factors and concludes dismissal is 16 warranted in this case. The expeditious resolution of litigation is deemed to be in the public 17 interest, satisfying the first factor. Yourish v. California Amplifier, 191 F.3d 983, 990–91 (9th 18 Cir. 1999). Turning to the second factor, the court’s need to efficiently manage its docket cannot 19 be overstated. This court has “one of the heaviest caseloads in the nation,” and due to unfilled 20 judicial vacancies, which is further exacerbated by the Covid-19 pandemic, operates under a 21 declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 22 Emergency in the Eastern District of California. The court’s time is better spent on its other 23 matters than needlessly consumed managing a case with a recalcitrant litigant. Indeed, “trial 24 courts do not have time to waste on multiple failures by aspiring litigants to follow the rules and 25 requirements of our courts.” Pagtalunan v. Galaza, 291 F.3d at 644 (Trott, J., concurring in 26 affirmance of district court’s involuntary dismissal with prejudice of habeas petition where 27 petitioner failed to timely respond to court order and noting “the weight of the docket-managing 28 factor depends upon the size and load of the docket, and those in the best position to know what 1 | that is are our beleaguered trial judges.”). Delays inevitably have the inherent risk that evidence 2 | will become stale or witnesses’ memories will fade or be unavailable and can prejudice a 3 | defendant, thereby satisfying the third factor. See Sibron v. New York, 392 U.S. 40, 57 (1968). 4 | Finally, a less drastic remedies in lieu of dismissal, such as directing plaintiff to submit an 5 | updated address or an order to show cause why the case should not be dismissed for failure to 6 | comply with Local Rules, would be an act of futility because the order would be returned without 7 | delivery. Additionally, the instant dismissal is a dismissal without prejudice, which is a lesser 8 | sanction than a dismissal with prejudice, thereby addressing the fifth factor. 9 Plaintiff failed to keep the court appraised of his address as required by Local Rule 182(f) 10 | and 183(b). This case cannot languish indefinitely, and the procedural rules are to be construed to 11 | ensure a “speedy . . . determination of every action.” Fed. R. Civ. P. 1. After considering the 12 | factors set forth supra and binding case law, the undersigned recommends dismissal, without 13 | prejudice, under Fed. R. Civ. P. 41(b) and Local Rule 183(b). 14 Accordingly, it is RECOMMENDED: 15 This case be dismissed without prejudice. 16 NOTICE TO PARTIES 17 These findings and recommendations will be submitted to the United States district judge 18 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 19 || (14) days after being served with these findings and recommendations, a party may file written 20 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 21 | Findings and Recommendations.” Parties are advised that failure to file objections within the 22 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 23 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 24 95 IT IS SO ORDERED. 26 Dated: _ May 13, 2021 Wihaw. □□□ fareh Hack 27 HELENA M. BARCH-KUCHTA

UNITED STATES MAGISTRATE JUDGE