1

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JARED ANDREW MARTIN Case No. 1:22-cv-00860-ADA-CDB (PC)

12 Plaintiff, FINDINGS AND RECOMMENDATIONS

TO DISMISS WITHOUT PREJUDICE FOR

13 v. FAILURE TO OBEY COURT ORDER,

FAILURE TO COMPLY WITH LOCAL

14 SISIDIO, et al., RULES, AND FAILURE TO PROSECUTE

15 Defendants. (Doc. 13)

16

17 FOURTEEN (14) DAY DEADLINE 18 19 Plaintiff Jared Andrew Martin was a county inmate proceeding pro se and in forma 20 pauperis in this civil rights action filed under 42 U.S.C. § 1983. 21 On April 11, 2023, the Court entered an order reassigning the case to a different District 22 Judge. (Doc. 12.) The Court served the order on the same day to Plaintiff at Madera County Jail, 23 14191 Road 28, Madera, CA 93638, his last known address of record. On April 17, 2023, the 24 order was returned as “Undeliverable, Not in Custody” by the United States Postal Service 25 (USPS). Plaintiff failed to update his address within sixty-three days as required by this Court’s 26 Local Rule 183. 27 On June 30, 2023, this Court entered an order to show cause requiring Plaintiff to 28 respond within fourteen days and show why this action should not be dismissed for his failure to 1 comply with the Local Rules and failure to prosecute. (Doc. 13.) The Court advised: “Failure to 2 comply with this Order will result in a recommendation that this case be dismissed for failure 3 to comply with the Local Rules and failure to prosecute.” (Id. at 2) (alteration in original). On 4 July 11, 2023, the USPS also returned the order to show cause as “Undeliverable, Not in Custody.” 5 Pursuant to Local Rule 182(f), if a pro se party fails to notify the Court of a change of 6 address, “service of documents at the prior address [of record] of the . . . pro se party shall be 7 fully effective.” L.R. 182(f). Although the order to show cause was returned to the Court, it is 8 fully effective, and Plaintiff failed to respond as ordered. 9 A pro se plaintiff must comply with orders of the Court. See L.R. 183. Failure to 10 comply with a court order may be grounds for imposition of sanctions, including dismissal or 11 any other sanction appropriate under the Local Rules. L.R. 110, 183. The district court’s 12 inherent power to control its docket also allows the court to impose sanctions, including 13 dismissal of an action. Thompson v. Hous. Auth., City of Los Angeles, 782 F.2d 829, 831 (9th 14 Cir. 1986); see L.R. 110. 15 In considering whether to dismiss an action for failure to comply with a court order, the 16 Court must weigh the following factors: “(1) the public’s interest in expeditious resolution of 17 litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; 18 (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of 19 cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik v. 20 Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992)). 21 The Ninth Circuit has explained that “[t]he public’s interest in expeditious resolution of 22 litigation always favors dismissal.” Id. (quoting Yourish v. Cal. Amplifier, 191 F.3d 983, 990 23 (9th Cir. 1999)). Plaintiff has failed to advance and prosecute this case by filing a notice of 24 change of address and responding to the Court’s order to show cause. (See Doc. 13.) 25 Accordingly, this factor weighs in favor of dismissal. 26 The Court’s need to manage its docket also weighs in favor of dismissal. “The trial judge 27 is in the best position to determine whether the delay in a particular case interferes with docket 28 management and the public interest . . . . It is incumbent upon the Court to manage its docket 1 without being subject to routine noncompliance of litigants.” Pagtalunan, 291 F.3d at 642. Here, 2 Plaintiff’s failure to update his address is delaying this case and interfering with docket 3 management. Therefore, the second factor also weighs in favor of dismissal. 4 With respect to the third factor, the risk of prejudice, “pendency of a lawsuit is not 5 sufficiently prejudicial in and of itself to warrant dismissal.” Id. (citing Yourish, 191 F.3d at 6 991). However, “delay inherently increases the risk that witnesses’ memories will fade and 7 evidence will become stale.” Id. at 643. Plaintiff’s failure to comply with a court order and to 8 prosecute this case is causing a delay. The third factor also weighs in favor of dismissal. 9 As for the availability of lesser sanctions, at this stage in the proceedings there is little 10 available to the Court that would constitute a satisfactory lesser sanction while protecting the 11 Court from further, unnecessary expenditure of its scarce resources. Given Plaintiff’s 12 incarceration, monetary sanctions are of little use. Moreover, at this stage of the proceedings, the 13 preclusion of evidence or witnesses is not available. The Ninth Circuit has explained that “[a] 14 district court need not exhaust every sanction short of dismissal before finally dismissing a case, 15 but must explore possible and meaningful alternatives.” Henderson v. Duncan, 779 F.2d 1421, 16 1424 (9th Cir. 1986). “A district court’s warning to a party that his failure to obey the court’s 17 order will result in dismissal can satisfy the ‘consideration of alternatives’ requirement.” Ferdik, 18 963 F.2d at 1262. Additionally, because the dismissal being considered in this case is without 19 prejudice, the Court is stopping short of imposing the harshest possible sanction of dismissal 20 with prejudice. 21 The fifth factor, the public policy favoring the disposition of cases on their merits, 22 ordinarily weighs against dismissal. See In re Phenylpropanolamine Prods. Liab. Litig., 460 F.3d 23 1217, 1228 (9th Cir. 2006). However, because Plaintiff has disregarded the Court’s order, this 24 factor does not weigh completely against dismissal. 25 After weighing these factors, the Court finds that dismissal is appropriate. Additionally, 26 Plaintiff appears to have abandoned this action upon his release from custody. Whether he has 27 done so intentionally or mistakenly is inconsequential. Plaintiff bears the responsibility to 28 comply with the Court’s orders. The Court declines to expend its limited resources on a case that 1 | Plaintiff no longer wishes to prosecute. 2 Accordingly, it is hereby RECOMMENDED: 3 1. The Court DISMISS this action WITHOUT PREJUDICE for failure to obey 4 a court order, failure to comply with the Local Rules, and failure to 5 prosecute; and 6 2. Direct the Clerk of Court to close this case. 7 These Findings and Recommendations will be submitted to the United States District 8 | Judge assigned to this case pursuant to 28 U.S.C. § 636(b)(1). Within fourteen (14) days from 9 | the date of service of these Findings and Recommendations, Plaintiff may file written objections 10 | with the Court. The document should be titled, “Objections to Magistrate Judge’s Findings and 11 | Recommendations.” Plaintiffs failure to file objections within the specified time may result in 12 | waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 13 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 | IT IS SO ORDERED. Dated: _ July 20, 2023 | Wr bo 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28