1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DRAKE FELDE, Case No. 1:22-cv-00286-HBK (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO

DISMISS CASE WITHOUT PREJUDICE1

13 v.

ORDER DIRECTING CLERK OF COURT TO

14 L. OGBUEHI, ET. AL., ASSIGN A DISTRICT JUDGE

15 Defendants. 14-DAY OBJECTION PERIOD 16 17 18 This matter comes before the Court upon periodic review of the file. The undersigned 19 recommends the district court dismiss this case without prejudice pursuant to the Court’s Local 20 Rules due to Plaintiff’s failure to timely update his address of record. 21 FACTS AND BACKGROUND 22 Plaintiff Drake Felde (“Plaintiff” or “Felde”) is a state prisoner proceeding pro se on his 23 civil rights complaint filed under 42 U.S.C. § 1983 on March 10, 2022. (Doc. No. 1). The Court 24 granted Plaintiff’s motion to proceed in forma pauperis on April 1, 2022 and mailed the order to 25 Plaintiff at his address of record. (Doc. No. 5). On April 12, 2022, the order was returned as 26

27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Ca. 2022). 28 1 undeliverable with a note that Plaintiff had been paroled. (See docket). Plaintiff’s change of 2 address was due no later than June 21, 2022. Local Rule 183(b). As of the date on these Findings 3 and Recommendations, Plaintiff has neither filed a notice of change of address nor contacted the 4 Court. Plaintiff has not filed an updated address, to the extent he has been transferred or released 5 as required by Local Rule 182(f). (See docket). 6 I. APPLICABLE LAW 7 This Court’s Local Rules require litigants to keep the court apprised of their current 8 address and permits dismissal when the litigant fails to comply. Specifically: 9 “[a] party appearing in propria persona shall keep the Court and opposing parties advised as to his or her current address. If mail 10 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 11 and opposing parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without prejudice 12 for failure to prosecute.” 13 E.D. Cal. Loc. R. 183(b) (2022); see also Local Rule 182(f) (all parties are “under a continuing 14 duty” to notify the clerk of “any change of address.”). Precedent supports a dismissal of a case 15 when a litigant fails to keep the court appraised on his address. Carey v. King, 856 F.2d 1439 16 (9th Cir. 1988) (affirming lower court and finding no abuse of discretion when district court 17 dismissed case without prejudice after pro se plaintiff did not comply with local rule requiring 18 pro se plaintiffs keep court apprised of addresses at all times); Hanley v. Opinski, Case No. 1:16- 19 cv-391-DAD-SAB, 2018 WL 3388510 (E.D. Ca. July 10, 2018) (dismissing action for failure to 20 prosecute and failure to provide court with current address). 21 Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action 22 when a litigant fails to prosecute an action or fails to comply with other Rules or with a court 23 order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889 24 (9th Cir. 2019) (citations omitted); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 25 683, 689 (9th Cir. 2005) (“[T]he consensus among our sister circuits, with which we agree, is that 26 courts may dismiss under Rule 41(b) sua sponte, at least under certain circumstances.”). Local 27 Rule 110 similarly permits the Court to impose sanctions on a party who fails to comply with the 28 court’s Rules or any order of court. 1 Involuntary dismissal is a harsh penalty, but it “is incumbent upon the Court to manage its 2 docket without being subject to routine noncompliance of litigants.” Pagtalunan v. Galaza, 291 3 F.3d 639, 642 (9th Cir. 2002). Before dismissing an action under Fed. R. Civ. P. 41, the Court 4 must consider: (1) the public interest in expeditious resolution of litigation; (2) the court’s need to 5 manage a docket; (3) the risk of prejudice to defendant; (4) public policy favoring disposition on 6 the merits; and (5) the availability of less drastic sanctions. See Applied Underwriters, 913 F.3d 7 at 889 (noting that these five factors “must” be analyzed before a Rule 41 involuntary dismissal) 8 (emphasis added); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (reviewing 9 five factors and independently reviewing the record because district court did not make finding as 10 to each factor); but see Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000) (listing 11 the same five factors, but noting the court need not make explicit findings as to each) (emphasis 12 added); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (affirming dismissal of pro se § 13 1983 action when plaintiff did not amend caption to remove “et al” as the court directed and 14 reiterating that an explicit finding of each factor is not required by the district court). 15 II. ANALYSIS 16 The undersigned considers each of the above-stated factors and concludes dismissal is 17 warranted in this case. The expeditious resolution of litigation is deemed to be in the public 18 interest, satisfying the first factor. Yourish v. California Amplifier, 191 F.3d 983, 990-91 (9th Cir. 19 1999). Turning to the second factor, the Court’s need to efficiently manage its docket cannot be 20 overstated. This Court has “one of the heaviest caseloads in the nation,” and due to unfilled 21 judicial vacancies, which is further exacerbated by the Covid-19 pandemic, operates under a 22 declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial 23 Emergency in the Eastern District of California. The Court’s time is better spent on its other 24 matters than needlessly consumed managing a case with a recalcitrant litigant. Indeed, “trial 25 courts do not have time to waste on multiple failures by aspiring litigants to follow the rules and 26 requirements of our courts.” Pagtalunan v. Galaza, 291 F.3d 639, 644 (9th Cir. 2002) (Trott, J., 27 concurring in affirmance of district court’s involuntary dismissal with prejudice of habeas petition 28 where petitioner failed to timely respond to court order and noting “the weight of the docket- 1 managing factor depends upon the size and load of the docket, and those in the best position to 2 know what that is are our beleaguered trial judges.”). Delays inevitably have the inherent risk 3 that evidence will become stale or witnesses’ memories will fade or be unavailable and can 4 prejudice a defendant, thereby satisfying the third factor. See Sibron v. New York, 392 U.S. 40, 5 57 (1968). Finally a less drastic remedies in lieu of dismissal, such as, directing Plaintiff to 6 submit an updated address, or an order to show cause why the case should not be dismissed for 7 failure to comply with Local Rules would be an act of futility because the order would be 8 returned without delivery. Additionally, the instant dismissal is a dismissal without prejudice, 9 which is a lesser sanction than a dismissal with prejudice, thereby addressing the fifth factor. 10 An order from the Court have been returned as undeliverable. And contrary to Local Rule 11 183(b), more than 63 days have passed since mail was returned as undeliverable and Plaintiff has 12 not updated his mailing address or otherwise contacted the court. After considering the factors 13 set forth supra and binding case law, the undersigned recommends dismissal, without prejudice, 14 under Fed. R. Civ. P. 41 and Local Rules 110 and 183(b). 15 Accordingly, it is ORDERED: 16 The Clerk shall assign a District Judge to this case. 17 It is further RECOMMENDED: 18 This case be dismissed without prejudice under Fed. R. Civ. P. 41(b), and Local Rules 110 19 and 183 (b). 20 //// 21 //// 22 //// 23 NOTICE TO PARTIES 24 These findings and recommendations will be submitted to the United States district judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 26 days after being served with these findings and recommendations, a party may file written 27 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 28 Findings and Recommendations.” Parties are advised that failure to file objections within the 1 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 2 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 Dated: October 26, 2022 ooo. Zh. fared Hack 5 HELENA M. BARCH-KUCHTA ‘ UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28