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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

10 11 12 ELLIOTT LEW GRIFFIN, ) NO. CV 18-0687-DOC (AGR) ) 13 Plaintiff, ) ) ORDER OF DISMISSAL 14 v. ) ) 15 Dr. E. FLORES, et al., ) ) 16 Defendants. ) ) 17 ) 18

I. Procedural History

19 On January 26, 2018, Plaintiff, a state inmate proceeding pro se and in 20 forma pauperis, filed a complaint under 42 U.S.C. § 1983. He named the 21 following defendants in their individual and official capacities: Dr. E. Flores, a 22 physician at North Kern State Prison (“NKSP”); Dr. K. Kaur (sued as “Kaar”), a 23 physician at California Health Care Facility (“CHCF”); Dr. J. Krpan, a physician at 24 CHCF; O. Siahaan, a physician’s assistant at CHCF (sued as “Siqhaan”); and Dr. 25 S. Pido, a physician at California Men’s Colony (“CMC”). 26 On May 2, 2018, Defendants filed a motion to dismiss the complaint under 27 Fed. R. Civ. P. 12(b)(6). On June 19, 2018, Plaintiff filed an opposition to the 28 1 motion. On June 22, 2018, Defendants filed a reply. 2 On January 9, 2019, the case was referred to the prisoner settlement 3 program. (Dkt. No. 25.) On February 19, 2019, the settlement proceeding was 4 held. The case was not settled. (Dkt. No. 35 (entered April 2, 2020).) 5 On February 14, 2019, the magistrate judge issued a report and 6 recommendation (“Report”) recommending that the district court issue an order 7 (1) accepting the Report; (2) denying Defendants’ motion to dismiss the official 8 capacity claim against Defendant Pido for injunctive relief; (3) granting 9 Defendants’ motion to dismiss all other official-capacity claims without leave to 10 amend; (4) denying Defendants’ motion to dismiss the Eighth Amendment claim 11 against Defendant Pido; (5) granting Defendants’ motion to dismiss all other 12 individual-capacity claims with leave to amend; and (6) granting Plaintiff leave to 13 file a First Amended Complaint. No objections were filed by the parties. 14 On March 13, 2019, Plaintiff lodged a First Amended Complaint. 15 On March 15, 2019, the District Court accepted the findings and 16 recommendation in the Report. The District Court granted in part and denied in 17 part Defendants’ motion to dismiss as follows: (1) Defendants’ motion to dismiss 18 the official capacity claim against Defendant Pido for injunctive relief was denied; 19 (2) Defendants’ motion to dismiss all other official-capacity claims was granted 20 without leave to amend; (3) Defendants’ motion to dismiss the Eighth Amendment 21 claim against Defendant Pido was denied; (4) Defendants’ motion to dismiss all 22 other individual-capacity claims was granted with leave to amend; and (5) Plaintiff 23 was granted leave to file a First Amended Complaint. The Clerk was directed to 24 file the First Amended Complaint lodged by Plaintiff. (Dkt. No. 29.) 25 On March 15, 2019, Plaintiff’s First Amended Complaint (“FAC”) was filed. 26 (Dkt. No. 30.) 27 On March 20, 2019, in light of the referral to the prisoner settlement 28 program, this court issued a minute order suspending the deadline to file 1 responsive pleadings to the FAC. (Dkt. No. 31.) On March 25, 2019, the court’s 2 mail was returned as undeliverable by the postal service indicating “Return to 3 Sender, Attempted - Not Known, Unable to Forward” and “Paroled/Discharged” 4 (Dkt. No. 32.) 5 II. Plaintiff’s Failure to Apprise the Court of His Current Address 6 On March 25, 2019, Plaintiff filed a Notice of Change of Address. The 7 court updated Plaintiff’s mailing address in the court’s Case Management 8 Electronic Case Filing system and re-mailed Plaintiff the Order Accepting 9 Findings and Recommendation of United States Magistrate Judge, Dkt. No. 29, 10 and the Minute Order re Further Proceedings, Dkt. No. 31. 11 On March 28, 2019, the court’s mail was returned by the postal service 12 indicating “Paroled/Discharged.” (Dkt. No. 34.) 13 On May 8, 2020, the court’s mail dated April 2, 2020 (report of prisoner 14 settlement proceeding) was returned by the postal service indicating “Not at this 15 address.” (Dkt. No. 36.) 16 On June 4, 2020, the magistrate judge issued an order to show cause why 17 this action should not be dismissed without prejudice for failure to prosecute this 18 action and/or failure to comply with a court order. (Dkt. No. 37.) 19 On June 22, 2020, the court’s mail dated June 4, 2020 (Order to Show 20 Cause) was returned by the postal service indicating “Return to Sender, 21 Attempted - Not known” and “Return to Sender not at this address.” (Dkt. No. 38.) 22 Local Rule 41-6 requires that a Plaintiff proceeding pro se must keep the 23 Court apprised of the Plaintiff’s current address. In addition, Local Rule 41-6 24 provides that “the Court may dismiss the action with or without prejudice for want 25 of prosecution” if the Plaintiff fails to notify the Court in writing of Plaintiff’s current 26 address within 15 days after mail is returned as undeliverable by the Postal 27 Service. 28 Plaintiff has failed to notify the court in writing of Plaintiff’s current address 1 within 15 days after mail is returned as undeliverable as required in Local Rule 2 41-6. 3 In determining whether to dismiss a case for failure to prosecute or failure 4 to comply with court orders, a district court should consider five factors: (1) the 5 public’s interest in expeditious resolution of litigation; (2) the court’s need to 6 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 7 favoring the disposition of cases on their merits; and (5) the availability of less 8 drastic sanctions. See In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994) (failure to 9 prosecute); Ferdik, 963 F.2d at 1260-61 (failure to comply with court orders). 10 The first two factors – the public’s interest in expeditious resolution of 11 litigation and the court’s need to manage its docket – weigh in favor of dismissal. 12 Plaintiff has failed to notify the court of his current address and has thereby 13 rendered it impossible for the court to contact him. Plaintiff’s conduct hinders the 14 court’s ability to move this case toward disposition, and indicates that Plaintiff 15 does not intend to litigate this action diligently. 16 The third factor – prejudice to defendants – also weighs in favor of 17 dismissal. A rebuttable presumption of prejudice to defendants arises when there 18 is a failure to prosecute diligently. Eisen, 31 F.3d at 1452-53. That presumption 19 may be rebutted when a plaintiff proffers an excuse for delay. Plaintiff has failed 20 to come forward with any excuse or reason for delay. 21 The fourth factor – public policy in favor of deciding cases on their merits – 22 weighs against dismissal. It is, however, a plaintiff’s responsibility to move a case 23 towards a disposition at a reasonable pace and to avoid dilatory tactics. See 24 Morris v. Morgan Stanley Co., 942 F.2d 648, 652 (9th Cir. 1991). Plaintiff has not 25 discharged this responsibility. In these circumstances, the public policy favoring 26 resolution of disputes on the merits does not outweigh Plaintiff’s failure to notify 27 the court of his change of address or respond to orders of the court. 28 The fifth factor – availability of less drastic sanctions – weighs in favor of 1 || dismissal, again because Plaintiff has failed to keep the court apprised of his 2 || current address and has not otherwise responded to the order to show cause. See Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988) (“It would be absurd to require the district court to hold a case in abeyance indefinitely just because it is 5 || unable, through the plaintiff's own fault, to contact the plaintiff to determine if his 6 || reasons for not prosecuting his lawsuit are reasonable or not.”). Taking all of the above factors into account, dismissal for failure to 8 || prosecute is appropriate. Absent a current address for Plaintiff, there is nothing 9 || more the court can do. 10 Accordingly, IT IS HEREBY ORDERED that this action is dismissed 11 || without prejudice. See Link v. Wabash R.R., 370 U.S. 626, 629-30, 82 S. Ct. 12|| 1386, 8L. Ed. 2d 734 (1962). 13 14 IT IS SO ORDERED. 15 Abani 0 Cait) DATED: June 30, 2020 17 UNITE D STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28