Opinion
Obinna N Chukwu, Plaintiff, Pro se, Atascadero, CA.
For Alcorn, Correctional Sergeant, indvidual capacity, Alcorn, Correctional Sergeant, official capacity, Freitas, Correctional Officer, indvidual capacity, Freitas, Correctional Officer, official capacity, B. Camack, Correctional Officer, indvidual capacity, B. Camack, Correctional Officer, official capacity, Defendants: Janine K Jeffery, LEAD ATTORNEY, Reily and Jeffery, Northridge, CA.
For Bulosan, Medical Doctor, individual capacity, Defendant: Gabrielle DeSantis-Nield, LEAD ATTORNEY, Maltzman and Partners PA, Encinitas, CA; Edgar R Nield, Nield Law Group APC, Encinitas, CA.
For Bulosan, Medical Doctor, official capacity, Defendant: Gabrielle DeSantis-Nield, LEAD ATTORNEY, Maltzman and Partners PA, Encinitas, CA.
MEMORANDUM AND ORDER DISMISSING ACTION FOR FAILURE TO PROSECUTE
HONORABLE ROBERT J. TIMLIN, UNITED STATES DISTRICT JUDGE.
This is a pro se civil rights action filed by Plaintiff Obinna Chukwu (" Plaintiff"). Plaintiff, who previously was incarcerated at Atascadero State Hospital in Atascadero, California, commenced this action on March 11, 2014. Since that time, Plaintiff has been released from custody, but has failed to notify the Court of his change of address. Defendants Alcorn, Camack, Freitas, and Dr. Buloson (" Defendants") have, thus, been unable to depose Plaintiff, and mail sent from the Court to Plaintiff has been returned as undeliverable. Thus, this action is dismissed without prejudice for failure to prosecute.
I .
BACKGROUND
Plaintiff Obinna N. Chukwu, proceeding pro se, commenced this civil rights action on March 11, 2014 by lodging a complaint pursuant to 42 U.S.C. § 1983 (" Complaint"). ECF Docket No. (" Dkt.") 1. On March 18, 2014, Plaintiff's request to proceed in forma pauperis was granted and the Complaint was filed. Dkt. 2-3.
Following the Court initial screening, the Complaint was dismissed with leave to amend. Dkt. 5.
On May 9, 2014, Plaintiff filed a First Amended Complaint. Dkt. 6. The First Amended Complaint alleges Defendants violated Plaintiff's constitutional rights under the Fourth, Eighth, and Fourteenth Amendments by conducting an unreasonable search seizure and employing excessive force. Id. On May 19, 2014, the Court issued an order permitting service of the First Amended Complaint. Dkt. 8.
On June 24, 2014, Plaintiff filed a Notice of Change of Address informing the Court he was now housed at Atascadero State Prison. Dkt. 12.
Central District Local Rule 41-6 provides:
The First Amended Complaint was subsequently served and defendants filed their answer to the First Amended Complaint on October 8, 2014. Dkt. 30.
On October 14, 2014, the Court issued its Case Management and Scheduling Order setting various dates for discovery, motions, and the filing of status reports. Dkt. 33.
On January 23, 2015, Defendants filed a Motion to Take the Deposition of Plaintiff who was, at the time, incarcerated. Dkt. 48. On January 26, 2015, the Court granted defendants' motion. Dkt. 50.
On February 24, 2015, Defendants filed a status report in which they reported they had been unable to contact Plaintiff since he was discharged from the California Department of Corrections and Rehabilitation on or about January 27, 2015. Dkt. 52. Defendants further reported mail directed to Plaintiff at Atascadero State Prison had been returned to them as undeliverable. Id.
Thus, on February 25, 2015, the Court issued an Order to Show Cause as to why this action should not be dismissed for failure to comply with court orders and/or failure to prosecute. Dkt. 53. In the Order, the Court further cautioned Plaintiff that " failure to timely file a response to this Order will be deemed by the Court as consent to the dismissal of this action." Id. at 2. The Order was sent to Plaintiff at his address of record, Atascadero State Hospital. Id.
On March 5, 2015, the Court received mail sent to Plaintiff at Atascadero State Hospital that was returned as undeliverable. Dkt. 54. The " Return to Sender" label stated Plaintiff was " Paroled/Discharged." Id.
II .
DISCUSSION
It is well established that district courts have authority to dismiss actions for failure to prosecute or to comply with court orders. See Fed.R.Civ.P. 41(b); Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (standard applied in dismissal for failure to prosecute); Link v. Wabash Railroad Co., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962) (dismissal for failure to prosecute to avoid undue delay or congestion in court calendars); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (dismissal for failure to comply with any court order).
In deciding whether to dismiss for failure to prosecute or to comply with court orders, a district court must consider five factors: " (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions." Omstead, 594 F.3d at 1084 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)); see also In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994) (failure to prosecute); Ferdik, 963 F.2d at 1260-61 (failure to comply with court orders).
In the present action, the first two factors -- public interest in expeditious resolution of litigation and the court's need to manage its docket -- weigh in favor of dismissal. Plaintiff's failure to inform the Court of his new address prevents the Court from communicating with Plaintiff, as evidenced by the recently returned mail. This hinders the Court's ability to move this case toward disposition, and suggests Plaintiff does not intend to litigate this action diligently.
The third factor -- prejudice to defendants -- also weighs in favor of dismissal. A rebuttable presumption of prejudice to a defendant arises when a plaintiff unreasonably delays prosecution of an action. See Eisen, 31 F.3d at 1452-53. Nothing suggests that such a presumption is unwarranted in this case. In fact, Defendants have been unable to depose Plaintiff, or communicate with him in any way, due to his unknown whereabouts.
The fourth factor -- public policy in favor of deciding cases on the merits -- ordinarily weighs against dismissal. However, it is a plaintiff's responsibility to move towards disposition at a reasonable pace, and avoid dilatory and evasive tactics. See Morris v. Morgan Stanley, 942 F.2d 648, 652 (9th Cir. 1991). Plaintiff has not discharged this responsibility, despite having been instructed on his responsibilities, granted sufficient time in which to discharge them, and warned of the consequences of failure to do so. Under these circumstances, the policy favoring resolution of disputes on the merits does not outweigh Plaintiff's failure to prosecute or obey court orders.
The fifth factor -- availability of less drastic sanctions -- also weighs in favor of dismissal. The Court cannot move the case toward disposition without Plaintiff's compliance with court orders or participation in this litigation. Plaintiff has shown that he is either unwilling or unable to comply with court orders by filing responsive documents or otherwise cooperating in prosecuting this action.
Finally, dismissal should not be entered unless a plaintiff has been notified that dismissal is imminent. See West Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1523 (9th Cir. 1990). Here, the Court's February 25, 2015 Order to Show Cause specifically attempted to warn Plaintiff the case would be dismissed if he failed to respond.
III .
ORDER
It therefore is ORDERED that this action be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b), Local Rule 41-6, and the Court's inherent power to achieve the orderly and expeditious disposition of cases by dismissing actions for failure to prosecute. See also Link, 370 U.S. at 629-30.
JUDGMENT
Pursuant to the Memorandum and Order Dismissing Action For Failure to Prosecute, IT IS HEREBY ADJUDGED that this action is dismissed without prejudice.
Dismissal - Failure of Pro Se Plaintiff to Keep Court Apprised of Current Address. A party appearing pro se shall keep the Court and opposing parties apprised of such party's current address and telephone number, if any, and email address, if any. If mail directed by the Clerk to a pro se plaintiff's address of record is returned undelivered by the Postal Service, and if, within fifteen (15) days of the service date, such plaintiff fails to notify, in writing, the Court and opposing parties of said plaintiff's current address, the Court may dismiss the action with or without prejudice for want of prosecution.