1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MARK R. FRISBY, Case No. 5:19-cv-01249-DSF (MAA)

12 Plaintiff, ORDER OF DISMISSAL

13 v. 14 THE STATE OF CALIFORNIA 15 DEPARTMENT OF JUSTICE et al.,

16 Defendants. 17 18 19 I. SUMMARY OF PROCEEDINGS 20 On July 8, 2019, Plaintiff Mark R. Frisby (“Plaintiff”), a California state 21 inmate proceeding pro se, filed a Complaint alleging violations of his civil rights 22 pursuant to

. (ECF No. 1.) On August 5, 2019, the Court granted 23 Plaintiff’s amended Request to Proceed Without Prepayment of Filing Fees with 24 Declaration of Support. (ECF Nos. 5–6.) On August 7, 2019, pursuant to the 25 Congressionally-mandated screening of any case in which a prisoner seeks redress 26 from a governmental entity or officer or employee of a governmental entity, or in 27 which a plaintiff proceeds in forma pauperis, the Court issued an Order dismissing 28 the Complaint with leave to amend. (ECF No. 8.) 1 On October 25, 2019, the Court received Plaintiff’s First Amended 2 Complaint (“FAC”). (FAC, ECF No. 12.) On December 9, 2019, the Court 3 screened and dismissed the FAC, with leave to file a Second Amended Complaint 4 (“SAC”) within thirty days—that is, by January 8, 2020. (ECF No. 14). On 5 January 13, 2020, the Court granted Plaintiff’s request for an extension of time to 6 file the SAC (ECF No. 15), and extended the SAC deadline to February 12, 2020. 7 (ECF No. 16.) On January 21, 2020, Plaintiff filed a Motion to Amend Petition, 8 attempting to add two pages of allegations to his complaint. (ECF No. 17.) On 9 January 24, 2020, because there was no active complaint to be amended, the Court 10 denied the Motion to Amend Petition and advised Plaintiff that the February 12, 11 2020 deadline to file a SAC remained unchanged. (ECF No. 18.) On February 3, 12 2020, Plaintiff filed a Motion: Response to Motion to Dismiss Order for Amended 13 Complaint, stating that Plaintiff did not intend to further modify his complaint. 14 (ECF No. 19.) On February 7, 2020, the Court reminded Plaintiff that there was no 15 active complaint to modify because the Court had dismissed the FAC, and extended 16 Plaintiff’s SAC deadline to March 9, 2020. (ECF No. 20.) 17 On March 24, 2020, in the absence of a filed SAC, the Court issued an Order 18 to Show Cause Why This Case Should Not Be Dismissed for Want of Prosecution. 19 (ECF No. 21.) The Court ordered Plaintiff to show cause by April 23, 2020 why 20 the Court should not recommend that the lawsuit be dismissed for want of 21 prosecution. (Id. at 2.) As Plaintiff did not respond, on June 10, 2020, the Court 22 issued a Report and Recommendation recommending that the lawsuit be dismissed 23 without prejudice for failure to prosecute and to comply with Court orders 24 (“R&R”). (R&R, ECF No. 24.) Plaintiff’s objections were due July 31, 2020. 25 (ECF No. 25.) 26 On August 18, 2020, the Court received Plaintiff’s Notice of Change of 27 Address. (ECF No. 26.) In light of this notice, on August 21, 2020, the Court re- 28 sent Plaintiff the R&R to the address on his notice, and extended Plaintiff’s 1 deadline to file objections to the R&R to September 20, 2020. (ECF No. 27.) The 2 August 21, 2020 order was returned to the Court as undeliverable on September 9, 3 2020. (ECF No. 28.) 4 On September 14, 2020, the Court located Plaintiff on the California 5 Department of Corrections and Rehabilitation’s (“CDCR”) Public Inmate Locator 6 System (https://inmatelocator.cdcr.ca.gov), and saw that Plaintiff had been 7 transferred to Richard J. Donovan Correctional Facility (“RJD”).1 (ECF No. 29.) 8 That same day, the Court issued an order stating in part: “Plaintiff is reminded that 9 his obligation to notify the Court of a change of address is a continuing obligation 10 and that he timely must file a notice of change of address every time he is 11 transferred or moves, and that failure to do so may result in a recommendation that 12 this action be dismissed for failure to prosecute. See C.D. Cal. L.R. 41-6; Carey v. 13 King,

, 1440–41 (9th Cir. 1988).” (Id. at 1.) The Court ordered 14 Plaintiff to file a notice of change of address to the Court, directed the Clerk to send 15 the R&R to Plaintiff at RJD, and once again extended Plaintiff’s deadline to file 16 objections to the R&R to October 14, 2020. (Id. at 2.) 17 On September 29, 2020, the Court received Plaintiff’s Notice of Change of 18 Address (ECF No. 30), Motion to Extend Deadline to File Objections to the R&R 19 and to File Amended Complaint (“Motion,” ECF No. 32), and Objections to the 20 R&R (ECF No. 31). On October 13, 2020, the Court withdrew the R&R, denied 21 Plaintiff’s Motion for an extension of time to file objections to the R&R as moot, 22 and granted Plaintiff’s Motion for an extension of time to file an amended 23 /// 24 25 1 The Court may take judicial notice of public records available on inmate locators. See United States v. Basher,

, 1165 n.2 (9th Cir 2011) (taking judicial 26 notice of the Bureau of Prisons’ inmate locator available to the public); McDaniel v. 27 Lizarraga, No. 2:19-cv-1136 JAM KJN P,

, at *5–6 (E.D. Cal. Oct. 14, 2020) (taking judicial notice of the public CDCR inmate locator 28 website). 1 complaint, extending Plaintiff’s SAC deadline to November 12, 2020. (ECF No. 2 33.) 3 The Court received Plaintiff’s Second Amended Complaint (“SAC”) on 4 November 2, 2020. (SAC, ECF No. 34.) On November 23, 2020, the Court 5 screened and dismissed the SAC with leave to amend (“Order”). (Order, ECF No. 6 35.) The Court ordered Plaintiff to, within thirty days after the date of the Order 7 (that is, December 23, 2020), either: (1) file a Third Amended Complaint (“TAC”), 8 or (2) advise the Court that Plaintiff did not intend to pursue this lawsuit further and 9 would not file a TAC. (Id. at 2.) The Court “explicitly caution[ed] Plaintiff that 10 failure to timely file a TAC, or timely advise the Court that Plaintiff does not 11 intend to file a TAC, w[ould] result in a recommendation that this action be 12 dismissed for failure to prosecute and/or failure to comply with court orders 13 pursuant to Federal Rule of Civil Procedure 41(b).” (Id. at 26.) 14 On January 22, 2021, in the absence of a filed TAC, the Court issued an 15 Order to Show Cause (“OSC”), ordering Plaintiff to show cause by February 21, 16 2021 why the Court should not recommend that the case be dismissed for want of 17 prosecution. (OSC, ECF No. 36.) The OSC stated that if Plaintiff filed a TAC or 18 dismissed the case before that date, the OSC would be discharged. (Id.) The OSC 19 “advised that failure to comply with this order w[ould] result in a 20 recommendation that the lawsuit be dismissed without prejudice for failure to 21 prosecute and/or comply with court orders. See Fed. R. Civ. P. 41(b); C.D. 22 Cal. L.R. 41-1.” (Id.) 23 To date, Plaintiff has failed to file a TAC or respond to the Order or OSC. 24 Indeed, Plaintiff has not communicated with the Court since submitting his SAC, 25 which the Court received on November 2, 2020. On March 23, 2021, the Court 26 checked the CDCR’s Public Inmate Locator System, and could no longer find a 27 record for Plaintiff. See CDCR Inmate Locator: Public Inmate Locator System, 28 /// 1 supra (“This search will only return adult inmates currently in the custody of the 2 [CDCR]”). Plaintiff has failed to update the Court with his current address. 3 4 II. LEGAL STANDARD 5 District courts may dismiss cases sua sponte for failure to prosecute or for 6 failure to comply with a court order under Federal Rule of Civil Procedure 41(b). 7 Hells Canyon Pres. Council v. U.S. Forest Serv.,

(9th Cir. 2005); 8 see also Link v. Wabash R.R. Co.,

, 629–30 (1962) (holding that the 9 court has “inherent power” to dismiss cases sua sponte for lack of prosecution). 10 Unless the Court states otherwise, a dismissal under Rule 41(b) operates as an 11 adjudication on the merits. Fed. R. Civ. P. 41(b). “Dismissal is a harsh penalty and 12 is to be imposed only in extreme circumstances.” In re: Phenylpropanolamine 13 (PPA) Prods. Liab. Litig.,

(9th Cir. 2006) (quoting Malone v. 14 USPS,

(9th Cir. 1987)). 15 “A Rule 41(b) dismissal ‘must be supported by a showing of unreasonable 16 delay.’” Omstead v. Dell,

(9th Cir. 2010) (quoting Henderson 17 v. Duncan,

(9th Cir. 1986)). In addition, the court must weigh 18 the following factors in determining whether a Rule 41(b) dismissal is warranted: 19 “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 20 to manage its docket; (3) the risk of prejudice to the defendants/respondents; (4) the 21 availability of less drastic alternatives; and (5) the public policy favoring disposition 22 of cases on their merits.” Pagtalunan v. Galaza,

(9th Cir. 2002). 23 The Ninth Circuit will “affirm a dismissal where at least four factors support 24 dismissal, or where at least three factors strongly support dismissal.” Dreith v. Nu 25 Image, Inc.,

(9th Cir. 2011) (quoting Yourish v. Cal. Amplifier, 26

, 990 (9th Cir. 1999)). Finally, “in order to warrant a sanction of 27 dismissal, the party’s violations of the court’s orders must be due to wilfulness or 28 bad faith.” Id. 1 III. ANALYSIS 2 A. The Public’s Interest in Expeditious Resolution and the Court’s 3 Need to Manage Its Docket 4 The first and second factors (the public’s interest in expeditious resolution of 5 litigation and the Court’s need to manage its docket)2 weigh in favor of dismissal. 6 “Orderly and expeditious resolution of disputes is of great importance to the rule of 7 law.” In re: Phenylpropanolamine,

. “The public’s interest in 8 expeditious resolution of litigation always favors dismissal.” Pagtalunan,

(quoting Yourish, 191 F.3d at 990). In addition, district courts “have an 10 inherent power to control their dockets,” In re: Phenylpropanolamine,

1227 (quoting Thompson v. Hous. Auth. of Los Angeles,

(9th Cir. 12 1986)), and “are best suited to determine when delay in a particular case interferes 13 with docket management and the public interest.” Yourish, 191 F.3d at 990 14 (quoting Ash v. Cvetkov,

(9th Cir. 1984)). 15 Plaintiff has failed to file a TAC or otherwise respond to the Order or OSC, 16 has failed to update his mailing address, and has not otherwise participated in this 17 lawsuit since November 2, 2020. The Court concludes that Plaintiff’s inaction and 18 lack of communication with the Court constitute willful unreasonable delay. See, 19 e.g., Thomas v. Maricopa Cnty. Jail, 265 F. App’x. 606, 607 (9th Cir. 2008) 20 (holding that district court did not abuse its discretion by dismissing pro se prisoner 21 lawsuit for failure to respond to a court order for almost three months). Plaintiff’s 22 noncompliance also interferes with the public’s interest in the expeditious 23 resolution of this litigation and hinders the Court’s ability to manage its docket. See 24 In re: Phenylpropanolamine,

(“[The Ninth Circuit] defer[s] to the 25 district court’s judgment about when a delay becomes unreasonable ‘because it is in 26 the best position to determine what period of delay can be endured before its docket 27 2 The first two factors are usually reviewed together “to determine if there is an 28 unreasonable delay.” In re Eisen,

(9th Cir. 1994). 1 becomes unmanageable.”) (quoting In re Eisen,

)). The first and 2 second factors favor dismissal. 3 4 B. Risk of Prejudice to Defendants 5 The third factor (risk of prejudice to the defendants) also weighs in favor of 6 dismissal. “A defendant suffers prejudice if the plaintiff’s actions impair the 7 defendant’s ability to go to trial or threaten to interfere with the rightful decision of 8 the case.” In re: Phenylpropanolamine,

(quoting Adriana Int’l 9 Corp. v. Thoeren,

(9th Cir. 1990)). “The law also presumes 10 prejudice from unreasonable delay.”

The risk of prejudice to a defendant is 11 related to a plaintiff’s reason for failure to prosecute an action. Pagtalunan, 291 12 F.3d at 642. “Whether prejudice is sufficient to support an order of dismissal is in 13 part judged with reference to the strength of the plaintiff’s excuse for the default.” 14 Malone,

. 15 Plaintiff continuously has refused to file a TAC without explanation. As 16 Plaintiff has not updated his address with the Court, the Court cannot ascertain 17 Plaintiff’s reason for failing to prosecute this lawsuit or comply with Court orders. 18 See Carey v. King,

(9th Cir. 1988) (“It would be absurd to 19 require the district court to hold a case in abeyance indefinitely just because it is 20 unable, through the plaintiff’s own fault, to contact the plaintiff to determine if his 21 reasons for not prosecuting his lawsuit are reasonable or not.”) As “a presumption 22 of prejudice arises from the plaintiff’s unexplained failure to prosecute,” the third 23 factor favors dismissal. See Hernandez v. City of El Monte,

(9th 24 Cir. 1998). 25 26 C. Availability of Less Drastic Alternatives 27 The fourth factor (the availability of less drastic alternatives) also supports 28 dismissal. “The district court need not exhaust every sanction short of dismissal 1 before finally dismissing a case, but must explore possible and meaningful 2 alternatives.” Henderson,

. 3 The Court considered and implemented less drastic alternatives prior to 4 dismissal. The Court twice explicitly warned Plaintiff that failure to file a TAC 5 would result in a recommendation that the action be dismissed for failure to 6 prosecute and/or failure to comply with Court orders pursuant to Federal Rule of 7 Civil Procedure 41(b). (Order 26; OSC.) See In re: Phenylpropanolamine, 460 8 F.3d at 1229 (“Warning that failure to obey a court order will result in dismissal can 9 itself meet the ‘consideration of alternatives’ requirement.”). The Court also 10 extended Plaintiff’s deadline to file a TAC from December 23, 2020 to February 21, 11 2021. (OSC.) See Ferdik v. Bonzelet,

(9th Cir. 1992) (holding 12 that the district court’s allowance of an additional thirty days for plaintiff to file an 13 amended complaint was an attempt at a less drastic sanction). As Plaintiff has not 14 provided his updated address to the Court, no alternatives to dismissal currently are 15 available. See Carey,

(concluding that there was no less drastic 16 sanction available than dismissal where mail addressed to plaintiff was returned by 17 the post office as undeliverable and plaintiff did not provide updated address to 18 court). The fourth factor weighs in favor of dismissal. 19 20 D. Public Policy Favoring Disposition on the Merits 21 As to the fifth factor, “[p]ublic policy favors disposition of cases on the 22 merits.” Pagtalunan,

. However, “a case that is stalled or 23 unreasonably delayed by a party’s failure to comply with deadlines . . . cannot move 24 toward resolution on the merits.” In re: Phenylpropanolamine,

. 25 Thus, “this factor lends little support to a party whose responsibility it is to move a 26 case towards disposition on the merits but whose conduct impedes progress in that 27 direction.”

(internal quotation marks omitted). The case has been stalled by 28 Plaintiff’s failure to file a TAC, otherwise respond to the Order or OSC, or update 1 || his address with the Court. Still, the public policy favoring the resolution of 2 || disputes on the merits is strong and, under the circumstances, outweighs Plaintiffs 3 || noncompliance and inaction. 4 5 E. Dismissal Without Prejudice 6 In summary, Plaintiffs failure to file a TAC or otherwise respond to the 7 || Order or OSC, failure to update his mailing address, and failure to otherwise 8 || participate in this lawsuit since November 2, 2020 constitute willful unreasonable 9 || delay. Four of the Rule 41(b) dismissal factors weigh in favor of dismissal, 10 || whereas only one factor weighs against dismissal. “While the public policy 11 || favoring disposition of cases on their merits weighs against [dismissal], that single 12 || factor is not enough to preclude imposition of this sanction when the other four 13 || factors weigh in its favor.” Rio Props., Inc. v. Rio Int’l Interlink,

, 14 } } 1022 (9th Cir. 2002). The Court concludes that dismissal of this action for failure 15 || to prosecute and to comply with Court orders is warranted, but, consistent with Rule 16 || 41(b) and this Court’s exercise of its discretion, the dismissal is without prejudice. 17 18 | IV. CONCLUSION 19 IT THEREFORE IS ORDERED that this lawsuit is DISMISSED without 20 || prejudice. No further filings shall be accepted under this case number. 21 22 || DATED: March 29, 2021 □□ Q } fe ele 23 Honorable Dale S. Fischer UNITED STATES DISTRICT JUDGE Presented by: 25 26 | yi 07 RIA A. AUDERO UNITED STATES MAGISTRATE JUDGE 28