1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DIONTAE JOHAN DUNCAN, Case No.: 1:20-cv-01288-KES-SKO 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION WITHOUT 13 v. PREJUDICE FOR PLAINTIFF’S FAILURE TO OBEY LOCAL RULES 14 CALIFORNIA HEALTHCARE AND FAILURE TO PROSECUTE RECEIVERSHIP CORP., et al., 15 14-DAY OBJECTION DEADLINE Defendants. 16

17 18 Plaintiff Diontae Johan Duncan, a former state prisoner, is appearing pro se and in forma 19 pauperis in this civil rights action pursuant to

. 20 I. RELEVANT BACKGROUND 21 Plaintiff was released from custody on July 11, 2024. (See Doc. 119.) Since that date, 22 Plaintiff has submitted two notices of change of address (Docs. 119 & 126); the most recent 23 change of address was filed January 22, 2025, and provides a residential street address in 24 Richmond, California (Doc. 126). 25 On June 30, 2025, the undersigned issued Findings and Recommendations to Dismiss 26 Certain Defendant After Screening of Plaintiff’s Third Amended Complaint. (Doc. 128.) 27 Objections were to be filed within 14 days. (Id. at 12-13.) The findings were served on Plaintiff 1 On September 15, 2025, District Judge Kirk E. Sherriff issued his Order Adopting 2 Findings and Recommendations to Dismiss Certain Defendant After Screening of Plaintiff’s 3 Third Amended Complaint. (Doc. 129.) The order was served on Plaintiff at his address on record 4 with the Court. On October 9, 2025, Judge Sherriff’s order was returned by the United States 5 Postal Service (USPS) marked “Undeliverable, RTS, Attempted-Not Known.”1 6 On October 14, 2025, Defendants filed a motion seeking an extension of time to file a 7 responsive pleading (Doc. 130) and a motion to revoke Plaintiff’s in forma pauperis (IFP) status 8 (Doc. 131). 9 On October 15, 2025, the undersigned issued orders vacating the deadline for the filing of 10 a responsive pleading, staying briefing on Defendants’ motion to revoke IFP status, directing the 11 Clerk to send Plaintiff a non-prisoner application to proceed IFP, and directing Plaintiff to submit 12 the completed non-prisoner IFP application within 30 days. (Doc. 132.) The orders were served 13 on Plaintiff that same date to his address on record with the Court. 14 On November 14, 2025, the October 15 orders were returned by the USPS marked 15 “Undeliverable, RTS, Not deliverable as addressed, Unable to Forward.” 16 II. DISCUSSION 17 Plaintiff has failed to keep the Court apprised of his current address. Therefore, the 18 undersigned will recommend this action be dismissed without prejudice. 19 Applicable Legal Standards 20 The Local Rules, corresponding with Federal Rule of Civil Procedure 11, provide, 21 “[f]ailure of counsel or of a party to comply with these Rules or with any order of the Court may 22 be grounds for the imposition by the Court of any and all sanctions authorized by statute or Rule 23 or within the inherent power of the Court.” Local Rule 110. “District courts have inherent power 24 to control their dockets” and, in exercising that power, may impose sanctions, including dismissal 25 of an action. Thompson v. Housing Auth., City of Los Angeles,

(9th Cir. 1986). 26 A court may dismiss an action based on a party’s failure to prosecute an action, obey a court 27 1 The return of mail by the USPS requires a notice of change of address be filed with the Court according to its Local Rules. 1 order, or comply with local rules. See, e.g., Ferdik v. Bonzelet,

(9th Cir. 2 1992) (dismissal for failure to comply with a court order to amend a complaint); Malone v. U.S. 3 Postal Service,

(9th Cir. 1987) (dismissal for failure to comply with a court 4 order); Henderson v. Duncan,

, 1424 (9th Cir. 1986) (dismissal for failure to 5 prosecute and to comply with local rules). 6 Local Rule 182(f) provides that a “pro se party is under a continuing duty to notify the 7 Clerk and all other parties of any change of address …. Absent such notice, service of documents 8 at the prior address of the … pro se party shall be fully effective.” Further, Local Rule 183(b) 9 states that a “party appearing in propria persona shall keep the Court and opposing parties advised 10 as to his or her current address. If mail directed to a plaintiff in propria persona by the Clerk is 11 returned by the U.S. Postal Service, and if such plaintiff fails to notify the Court and opposing 12 parties within thirty (30) days thereafter of a current address, the Court may dismiss the action 13 without prejudice for failure to prosecute.” (Emphasis omitted.) 14 “In determining whether to dismiss an action for lack of prosecution, the district court is 15 required to weigh several factors: (1) the public’s interest in expeditious resolution of litigation; 16 (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 17 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 18 sanctions.” Carey v. King,

(9th Cir. 1988) (internal quotation marks & 19 citation omitted). These factors guide a court in deciding what to do and are not conditions that 20 must be met in order for a court to take action. In re Phenylpropanolamine (PPA) Products 21 Liability Litigation,

(9th Cir. 2006) (citation omitted). 22 Analysis 23 Here, Plaintiff has failed to file a notice of change of address or to otherwise advise the 24 Court of his current address. According to the Court’s docket, Plaintiff’s address of record is: Diontae Johan Duncan 25 352 South 39th Street 26 Richmond, CA 94804 (510) 421-7020 27 PRO SE (See docket.) 1 All orders issued by the Court since January 22, 2025, have been served at that address. 2 The Findings and Recommendations issued and served on June 30, 2025, were not returned to the 3 Court by USPS, but on October 9 and November 14, 2025, mail directed to Plaintiff was returned 4 to the Court marked “Undeliverable” by USPS with no forwarding address. Pursuant to this 5 Court’s Local Rules, Plaintiff was required to file a notice of change of address no later than 6 Monday, November 10, 2025.2 More than a week has passed and a notice of address has not been 7 filed. Because Plaintiff has failed keep the Court apprised of his current address, 3 this action is 8 subject to dismissal. Plaintiff has also failed to comply with the Court’s order to submit a non- 9 prisoner IFP application. Given the Court’s inability to communicate with Plaintiff, there are no 10 other reasonable alternatives available to address Plaintiff’s failure to obey the Local Rules and 11 failure to prosecute. Thus, the first and second factors — the expeditious resolution of litigation 12 and the Court’s need to manage its docket — weigh in favor of dismissal. Carey,

1440. 14 The third factor, risk of prejudice to defendant, also weighs fairly in favor of dismissal 15 since a presumption of injury arises from the occurrence of unreasonable delay in prosecuting an 16 action. See Anderson v. Air W.,

(9th Cir. 1976). Here, Defendants have 17 appeared in the action. The Court vacated the deadline for filing Defendants’ responsive 18 pleading4 to allow Plaintiff an opportunity to complete a non-prisoner IFP application given 19 Defendants’ pending motion to revoke Plaintiff’s IFP status. These proceedings are essentially at 20 a standstill because of Plaintiff’s failure to keep the Court and the parties apprised of his current 21 address and failure to comply with the Court’s directive to submit a non-prisoner IFP application. 22 2 Because 30 days from October 9, 2025, fell on a Saturday, the following Monday became the filing 23 deadline. Since Plaintiff paroled more than one year ago, the mailbox rule does not apply. See Emasealu v. Gomez, No. 1:22-cv-01326-HBK (PC),

, at *1, n.2 (E.D. Cal. Aug. 30, 2023) (“Because 24 Plaintiff is no longer incarcerated, he is not entitled to the mailbox rule”); Russo v. Arigalva, No. 1:23-cv- 00703-HBK (PC),

, at *1, n.2 (E.D. Cal. Sept. 12, 2023) (same). 25

26 3 The Court notes Plaintiff has filed numerous changes of address throughout the course of this litigation. (See Docs. 32, 67, 72, 114, 115, 119 & 126.) 27 4 Judge Sherriff’s order issued September 15, 2025, directed Defendants Grewal, Marciel, Taylor, and Gallienne to file a responsive pleading within 30 days. (See Doc. 129 at 2.) 1 Plaintiff has unreasonably delayed the prosecution of this action since at least October 9, 2025, 2 when mail directed to Plaintiff was returned to the Court as undeliverable. Thus, the third factor 3 also weighs in favor of dismissal. Carey,

. 4 The fourth factor usually weighs against dismissal because public policy favors 5 disposition on the merits. Pagtalunan v. Galaza,

(9th Cir. 2002). However, 6 “this factor lends little support to a party whose responsibility it is to move a case toward 7 disposition on the merits but whose conduct impedes progress in that direction.” In re PPA, 460 8 F.3d at 1228. Plaintiff has not moved this case forward toward disposition on the merits. It is his 9 responsibility to do so. Instead, Plaintiff has stopped communicating with the Court altogether 10 and has failed to comply with this Court’s Local Rules and orders. Although more than 30 days 11 have passed since the USPS returned the Judge Sherriff’s September 15, 2025, order marked 12 undeliverable, Plaintiff has failed to file a notice of change of address in compliance with Local 13 Rule 183(b). Nor has Plaintiff complied with the Court’s October 15, 2025, order to complete and 14 file a non-prisoner IFP application within 30 days. Therefore, the fourth factor — the public 15 policy favoring disposition of cases on their merits — also weighs in favor of dismissal. Carey, 16

. 17 Finally, the Court’s warning to a party that failure to obey the court’s orders will result in 18 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik,

. 19 Here, in the First Informational Order in Prisoner/Civil Detainee Civil Rights Case issued 20 September 14, 2020, Plaintiff was advised as follows: “In litigating this action, the parties must 21 comply with this Order, the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”), and the Local 22 Rules of the United States District Court, Eastern District of California (“Local Rules”), as 23 modified by this Order. Failure to so comply will be grounds for imposition of sanctions which 24 may include dismissal of the case. Local Rule 110; Fed. R. Civ. P. 41(b).” (See Doc. 5 at 1.) That 25 Order further advised: “A pro se plaintiff must keep the Court and opposing parties informed of 26 the party’s correct current address. Local Rule 182(f). If a party moves to a different address 27 without filing and serving a notice of change of address, documents served at a party’s old 1 pro se plaintiff at the address of record is returned by the United States Postal Service as 2 undeliverable, the order will not be re-served a second time absence a notice of change of 3 address. If a pro se plaintiff’s address is not updated within sixty-three (63) days of mail being 4 returned as undeliverable, the case will be dismissed for failure to prosecute.” (Id. at 5.)5 5 However, as of January 1, 2025, Local Rule 183(b) provides that a change of address must be 6 filed within 30 days.6 The undersigned finds Plaintiff had adequate warning that dismissal could 7 result from his noncompliance with this Court’s Local Rules or failure to update his address. 8 Thus, the fifth factor — the availability of less drastic sanctions —weighs in favor of dismissal. 9 Ferdik,

; Carey,

. 10 In sum, Plaintiff has failed to comply with this Court’s Local Rules, and in doing so, has 11 failed to prosecute this action. Having weighed the equities and considered the relevant factors 12 noted above, the undersigned concludes that dismissal of this action is warranted. 13 III. CONCLUSION AND RECOMMENDATION 14 For the foregoing reasons, the Court HEREBY RECOMMENDS that this action be 15 dismissed, without prejudice, based on Plaintiff’s failure to obey the Local Rules and to prosecute 16 this action. 17 These Findings and Recommendations will be submitted to the United States District 18 Judge assigned to this case, pursuant to the provisions of

(b)(l). Within 14 days 19 after being served with a copy of these Findings and Recommendations, a party may file written 20 objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to 21 Magistrate Judge’s Findings and Recommendations” and shall not exceed fifteen (15) pages 22 without leave of Court and good cause shown. The Court will not consider exhibits attached to 23 5 A blank “Notice of Change of Address” form was also provided for Plaintiff’s use. (See Doc. 5 at 7.) 24 6 The Local Rules state: “These Local Rules are effective on December 1, 2009, and shall govern all actions then 25 pending or commenced thereafter.” See Local Rule 100(e). Further, the Local Rules provide: “Immediately upon the adoption of these Rules or any change in these Rules, copies of the new and revised Rules shall be provided to such 26 publications and persons as the Chief Judge deems appropriate. The Clerk shall promptly notify … other law libraries maintained by the State [like state prison law libraries] … in the Eastern District of California. Copies shall 27 be distributed in a manner calculated to ensure maximum notification to those practicing in the Eastern District of California. A notice shall be posted prominently in the Clerk's Offices and on the Court's website.” See Local Rule 1 the Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference 2 the exhibit in the record by its CM/ECF document and page number, when possible, or otherwise 3 reference the exhibit with specificity. Any pages filed in excess of the fifteen (15) page limitation 4 may be disregarded by the District Judge when reviewing these Findings and Recommendations 5 under

(b)(l)(C). A party’s failure to file any objections within the specified time 6 may result in the waiver of certain rights on appeal. Wilkerson v. Wheeler,

(9th 7 Cir. 2014). 8 IT IS SO ORDERED. 9

10 Dated: November 21, 2025 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 11

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