1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 PAUL LEE, ) CASE NO. SACV 20-301-GW-PJW ) 11 Plaintiff, ) ORDER DISMISSING ACTION FOR ) FAILURE TO PROSECUTE 12 v. ) ) 13 CITY OF HUNTINGTON BEACH, ) CALIFORNIA, et al., ) 14 ) Defendants. ) 15 ) 16 Plaintiff Paul Lee filed this civil rights action in February 17 2020, alleging Defendants City of Huntington Beach Police Department, 18 Officer Dineen, and Doe 2 targeted him because he is homeless and 19 arrested him on a fictitious charge claiming “illegal storage of 20 property.” He claims they also used excessive force against him. 21 Plaintiff seeks injunctive relief, monetary damages, and punitive 22 damages. (Complaint at 6.) 23 On May 13, 2020, after the Court received mail returned 24 undelivered by the Postal Service for the third time, the Court 25 ordered Plaintiff to provide the Court with a new address by June 12, 26 2020 and/or register for CM/ECF so that the Court could serve him 27 electronically. The Court warned Plaintiff that failure to timely 28 1 abide by this order would result in dismissal of the action. On June 2 3, 2020, that order, too, was returned to the Court undelivered. 3 Because the case cannot proceed without Plaintiff’s participation 4 and because Plaintiff is unable or unwilling to provide the Court with 5 an address where he can receive mail, the Court concludes that 6 dismissal without prejudice is warranted under Federal Rule of Civil 7 Procedure Rule 41(b). See Ferdik v. Bonzelet, 963 F.2d 1258, 1263 8 (9th Cir. 1992); see also, e.g., Louis v. Governor of California, 2019 9 WL 5543547, at *2 (C.D. Cal. Oct. 25, 2019), judgment entered, 2019 WL 10 5538432 (C.D. Cal. Oct. 25, 2019). 11 It is well-established that a district court may dismiss an 12 action for failure to prosecute, failure to follow court orders, or 13 failure to comply with the federal or local rules. See Fed. R. Civ. 14 P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962) (“The 15 power to invoke this sanction is necessary in order to prevent undue 16 delays in the disposition of pending cases and to avoid congestion in 17 the calendars of the District Courts.”). In determining whether 18 dismissal is warranted, the Court considers five factors: (1) the 19 public’s interest in expeditious resolution of litigation, (2) the 20 Court’s need to manage its docket, (3) the risk of prejudice to 21 Defendants, (4) the public policy favoring the disposition of cases on 22 their merits, and (5) the availability of less drastic sanctions. 23 Ferdik, 963 F.2d at 1260-61; Omstead v. Dell, 594 F.3d 1081, 1084 (9th 24 Cir. 2010). 25 The Court finds that the delay here necessarily implicates both 26 the interest in expeditious resolution of litigation and the Court’s 27 need to efficiently manage its docket--the first and second factors-- 28 and weighs in favor of dismissal. See Yourish v. Cal. Amplifier, 191 1 F.3d 983, 990 (9th Cir. 1999) (“[T]he public’s interest in expeditious 2 resolution of litigation always favors dismissal.”); Pagtalunan v. 3 Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (finding factors of public 4 interest in expeditious resolution of case and court’s need to manage 5 its docket weigh in favor of dismissal where litigant failed to pursue 6 the case for almost four months). Plaintiff’s failure to keep the 7 Court apprised of his address has caused this action to come to a 8 halt, impermissibly allowing Plaintiff to control the pace of the 9 docket rather than the Court. See Yourish, 191 F.3d at 990; 10 Pagtalunan, 291 F.3d at 642 (“It is incumbent upon the Court to manage 11 its docket without being subject to routine noncompliance of litigants 12 . . . .”). 13 The third factor--risk of prejudice to Defendants--also weighs in 14 favor of dismissal. As time goes by, the witnesses’ memories begin to 15 fade and the evidence becomes stale, making it increasingly difficult 16 for Defendants to defend themselves against these charges. See In re 17 Phenylpropanolamine (PPA) Prod. Liab. Litig., 460 F.3d 1217, 1227 (9th 18 Cir. 2006) (“The law . . . presumes prejudice from unreasonable 19 delay.”). 20 The fourth factor--the general policy favoring resolution of 21 cases on the merits--weighs in Plaintiff’s favor. See Pagtalunan, 291 22 F.3d at 643 (“Public policy favors disposition of cases on the 23 merits.”). But this is the fourth time that mail sent by the Court 24 has been returned undeliverable and the Court is unable to resolve 25 this case on the merits without Plaintiff’s participation. See 26 Ferdik, 963 F.2d at 1262 (“a district court’s warning to a party that 27 his failure to obey the court’s order will result in dismissal can 28 satisfy the ‘consideration of alternatives’ requirement”) (citation 2 |} omitted). 3 Finally, the fifth factor--availability of less drastic 4] alternatives--also weighs in favor of dismissal. The Court is unable 5 || to impose a lesser sanction, e€.g., monetary sanctions, because 6 || Plaintiff is proceeding IFP (and, therefore, does not have any money 7 || to pay sanctions) and because he cannot be found. 8 Considering all five factors, the Court concludes that dismissal for failure to prosecute is warranted. See Ferdik, 963 F.2d at 1263 10 |} (concluding dismissal appropriate where supported by only three 11 || factors); Pagtalunan, 293 F.3d at 643 (same). This action is 12 | dismissed without prejudice. 13 IT IS SO ORDERED. 14 DATED: June 16, 2020. 15 16 A ferry KK, 4i—— 17 HON. GEORGE H. WO

UNITED STATES DISTRICT JUDGE

18 19 20 21 || Presented by: 2 Jeeued G. A2GE 23

PATRICK J. WALSH

24 || UNITED STATES MAGISTRATE JUDGE 25 26 27 28 |] c:\Users\ javiergonzalez\AppData\Local \Microsoft \Windows\INetCache\ Content .Out look\XBVOY598\Ord_dismiss.fa ilure.prosecute.wpd