1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 IHAB GAMIL DIA, Case No.: 3:18-cv-02676-BEN-RBB

12 Plaintiff, ORDER 13 v. (1) ADOPTING REPORT AND 14 COUNTY OF SAN DIEGO, et al., RECOMMENDATION; and 15 Defendants. (2) DISMISSING ACTION 16 WITHOUT PREJUDICE 17 [ECF Nos. 33, 43] 18

19 This matter comes before the Court on a Motion for Terminating Sanctions filed by 20 Defendants the County of San Diego, Sean Gallagher, and Jason Ferguson. ECF No. 33. 21 The Court referred the Motion to Magistrate Judge Ruben B. Brooks for a Report and 22 Recommendation. ECF No. 34. As set forth below, the Report and Recommendation is 23 adopted and the Motion is denied. However, due to continuing non-compliance with 24 Orders of this Court, Plaintiff Ihab Gamil Dia’s Complaint is dismissed without 25 prejudice. 26 I. Factual and Procedural History 27 On November 26, 2018, Dia filed a Complaint against Defendants alleging 28 violations of

. ECF No. 1. Dia was represented by counsel, but later his 1 attorney requested to withdraw. ECF No. 16. The Court granted the Motion to Withdraw 2 on August 2, 2019, and allowed Dia forty-five days to obtain new counsel, after which 3 Dia would be deemed to proceed pro se. ECF No. 19. 4 Dia did not obtain new counsel but continued to appear at Settlement Conferences 5 with Magistrate Judge Ruben B. Brooks on November 13, 2019, January 15, 2020, and 6 May 19, 2020. The Parties requested an extension of the deadlines for the scheduling 7 Order citing, among other reasons, Dia’s incarceration at the time and his poor health. 8 On June 18, 2020, Magistrate Judge Brooks granted the extension in part and issued an 9 amended Scheduling Order. ECF No. 31. Dia sent a supplemental document the 10 following day stating that he remained unable to pursue his case due to physical and 11 mental health impairments. ECF No. 32. 12 On July 28, 2020, Defendants filed a Motion for Terminating Sanctions arguing 13 that Dia’s failure to prosecute the case and requested delays caused them prejudice 14 warranting dismissal pursuant to Federal Rules of Civil Procedure 16, 37, and 41. ECF 15 No. 33. The Motion was referred to Magistrate Judge Brooks for a Report and 16 Recommendation. ECF No. 34. Magistrate Judge Brooks set a briefing schedule for the 17 Motion and held another Settlement Conference, at which Dia failed to appear. ECF 18 Nos. 35, 36. Magistrate Judge Brooks noted that Defendants’ counsel indicated that Dia 19 was released from custody on July 22, 2020. ECF No. 36. 20 Dia failed to file any pleadings in accordance with the briefing schedule outlined 21 by Magistrate Judge Brooks. Nonetheless, Magistrate Judge Brooks issued a thoughtful 22 and thorough Report and Recommendation analyzing the five factors set forth in Malone 23 v. U.S. Postal Service for determining whether dismissal is appropriate when a party fails 24 to comply with court orders.

(9th Cir. 1987). Magistrate Judge 25 Brooks recommended denying Defendants’ Motion because the fifth factor, the 26 availability of less drastic sanctions, was still available at that time. ECF No. 43, 8. 27 Magistrate Judge Brooks cautioned Dia, however, that his “case is hanging by a thread.” 28

He reminded Dia that he “cannot continue to disregard the Court’s orders and 1 Defendants’ efforts to litigate this case.”

The time for objections to the Report and 2 Recommendation has since lapsed, and neither Party filed an objection. 3 II. Legal Standards 4 A district judge “may accept, reject, or modify the recommended disposition” of a 5 magistrate judge on a dispositive matter. Fed. R. Civ. P. 72(b)(3); see also

636(b)(1). “[T]he district judge must determine de novo any part of the [report and 7 recommendation] that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). 8 However, “[t]he statute makes it clear that the district judge must review the magistrate 9 judge’s findings and recommendations de novo if objection is made, but not otherwise.” 10 United States v. Reyna-Tapia,

(9th Cir. 2003) (en banc); see also 11 Wang v. Masaitis,

, 1000 n.13 (9th Cir. 2005). “Neither the Constitution nor 12 the statute requires a district judge to review, de novo, findings and recommendations that 13 the parties themselves accept as correct.” Reyna-Tapia,

. 14 Federal Rule of Civil Procedure 16(f) provides “[o]n motion or on its own, the 15 court may issue any just orders, including those authorized by Rule 37(b)(2)(A)(ii)-(vii), 16 if a party . . . (A) fails to appear at a scheduling or other pretrial conference . . . or (C) 17 fails to obey a scheduling or other pretrial order.” Federal Rule of Civil Procedure 18 37(b)(2)(A) provides that if a party “fails to obey an order to provide or permit 19 discovery,” the Court may “dismiss[] the action or proceeding in whole or in part.” The 20 five factors considered by a court in ordering dismissal as a terminating sanction are 21 thoroughly described in the Report and Recommendation. See ECF No. 43, 5 (citing 22 Malone,

. While “dismissal for lack of prosecution is a harsh penalty and 23 is to be imposed only in extreme circumstances,” dismissal may be supported “by a 24 showing of unreasonable delay.” Henderson v. Duncan,

(9th Cir. 25 1986) (citations omitted). 26 Local Civil Rule 83.11(b) requires parties proceeding pro se to “keep the court and 27 opposing parties advised as to current address.” It provides that if “mail directed to a pro 28 se plaintiff by the clerk at the plaintiff's last designated address is returned by the Post 1 Office, and if such plaintiff fails to notify the court and opposing parties within 60 days 2 thereafter of the plaintiff's current address, the court may dismiss the action without 3 prejudice for failure to prosecute.”

(emphasis added). 4 III. Analysis 5 The Court need not conduct de novo review of the Report and Recommendation 6 given the absence of objections. The Court has considered and agrees with the Report 7 and Recommendation (ECF No. 43) and accordingly adopts it. Defendants’ Motion to 8 Dismiss (ECF No. 33) is denied. However, in the time since the Report and 9 Recommendation was issued Dia has persisted in non-compliance with court orders and 10 thus the fifth Malone factor now weighs strongly in favor of dismissal. 11 On August 12, 2020, Magistrate Judge Brooks directed a copy of his order setting 12 a further Settlement Conference be sent to both Dia’s current docket address at the 13 George Bailey Detention Facility and the address Dia used prior to his incarceration. 14 ECF No. 36. The Order further admonished Dia that Local Civil Rule 83.11(b) requires 15 him to keep the Court and opposing parties advised of his current address.

The Order 16 was returned undeliverable. ECF No. 40. 17 On September 10, 2020, Magistrate Judge Brooks held a telephonic Settlement 18 Conference at which Dia failed to appear. ECF No. 41. Following the Settlement 19 Conference, Magistrate Judge Brooks again set a Settlement Conference for October 6, 20 2020, and directed the Order be served on Dia at both the George Bailey Detention 21 Facility and the address he used prior to his incarceration.

The Order was again 22 returned undeliverable. ECF No. 45. Magistrate Judge Brooks also issued an Order to 23 Show Cause, requiring Dia to file a response by September 22, 2020, to explain “why 24 sanctions, including dismissal of this action, should not be imposed,” and to appear 25 telephonically at the Settlement Conference on October 6, 2020. ECF No. 42. 26 Despite Magistrate Judge Brooks’ Order to Show Cause, Dia failed to respond to 27 the Order or to appear at the Settlement Conference. ECF No. 47. Magistrate Judge 28 Brooks set a further Settlement Conference for November 4, 2020 and directed a copy of 1 the Order be sent to Dia at both of his known addresses discussed above. That Order, 2 once again, was returned as undeliverable. ECF No. 49. On November 4, 2020, Dia 3 once again failed to appear for the Settlement Conference. ECF No. 50. 4 The Post Office first returned as undeliverable mail intended for Dia at his last 5 designated addresses on August 21, 2020. ECF Nos. 37-38. Since that point, all mail 6 intended for Dia sent by the Court has been returned undeliverable. See ECF Nos. 39-40, 7 44-46, 49. More than sixty days have elapsed. 8 Dia has been warned on several occasions that his failure to participate in 9 telephonic Settlement Conferences could be grounds for dismissal of his action. See ECF 10 Nos. 41-42, 47. His continued non-compliance with orders is causing an unreasonable 11 delay in this case. The delay flouts the public’s interest in the expedient resolution of 12 litigation and prevents the Court from controlling its docket. It has caused prejudice to 13 Defendants’ ability to timely defend this case. Lesser sanctions such as warnings have 14 proved inadequate, and the Court concludes that other alternative sanctions such as fines 15 or preclusion of claims or defenses would be futile. 16 The Court finds that Local Rule 83.11(b) provides Dia notice that actions including 17 dismissal without prejudice may be taken if he failed to update his address with the 18 Court. See Carey v. King,

(9th Cir. 1988) (finding a similar local 19 rule requiring parties appearing pro se to maintain an updated address “itself provided 20 notice” of the dismissal action taken by the court). Moreover, “additional prior notice of 21 imminent dismissal would be a futile gesture,” given Dia’s previous non-compliance and 22 that the Court’s prior mailings have all been returned as undeliverable.

“A party, not 23 the district court, bears the burden of keeping the court apprised of any changes in his 24 mailing address.”

25 Accordingly, the Court now finds dismissal without prejudice is appropriate. 26 /// 27 /// 28 /// 1 Conclusion 2 For the reasons set forth above, the Court adopts the Report and Recommendation. 3 || ECF No. 43. Defendants’ Motion for Terminating Sanctions is therefore denied. ECF 4 ||No. 33. However, Plaintiff's continued non-compliance with Orders of this Court 5 || warrants dismissal of this case without prejudice. 6 IT IS SO ORDERED.

g Date: November 9, 2020 . ROGER T. BENITE 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28