(PS) Tanksley v. UC Davis Hospital
2:13-cv-01765
E.D. Cal.Oct 8, 2013Background
- Pro se plaintiff Moody Woodrow Tanksley filed suit against UC Davis Hospital on August 26, 2013; the case was reclassified as non‑prisoner on August 29, 2013.
- Court sent plaintiff a blank in forma pauperis (IFP) application and ordered plaintiff to either pay the filing fee or file a completed IFP application within 28 days.
- Plaintiff failed to pay the fee or file an IFP application by the deadline and did not respond to the court’s order.
- All court orders and notices have been returned as undeliverable; plaintiff did not file a change‑of‑address as required by local rule.
- The magistrate judge evaluated dismissal under Fed. R. Civ. P. 41(b) and the five Ferdik factors and recommended dismissal without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether case should be dismissed for failure to prosecute and failure to comply with court order/local rules | Tanksley did not file an IFP application or pay fee and made no response | UC Davis implicitly argues dismissal appropriate given lack of prosecution and address updates | Court recommends dismissal under Rule 41(b) for failure to prosecute and obey orders |
| Whether service of the court’s orders was effective despite returned mail | Tanksley did not assert nonreceipt or provide new address | UC Davis relies on effectiveness of service to address on file | Court treats service at last known address as effective absent change of address notice |
| Whether less drastic alternatives exist (e.g., opportunity to cure, show cause) | Tanksley offered no communications or cure | UC Davis would oppose further delay; court notes futility given returned mail | Court finds less drastic alternatives futile and recommends dismissal |
| Whether dismissal should be with or without prejudice | Tanksley did not argue disposition type | UC Davis did not seek specific relief as to prejudice | Court recommends dismissal without prejudice because plaintiff is pro se and may not have received notice |
Key Cases Cited
- Chambers v. NASCO, Inc., 501 U.S. 32 (recognizing court authority to dismiss sua sponte for failure to prosecute)
- Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683 (9th Cir. 2005) (Rule 41(b) dismissal for failure to prosecute affirmed)
- Ferdik v. Bonzelet, 963 F.2d 1258 (9th Cir. 1992) (five‑factor test for dismissal under Rule 41(b))
- Pagtalunan v. Galaza, 291 F.3d 639 (9th Cir. 2002) (affirming dismissal for failure to prosecute)
- In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217 (9th Cir. 2006) (guidance that Ferdik factors guide, not dictate, dismissal decisions)
- Ghazali v. Moran, 46 F.3d 52 (9th Cir. 1995) (procedural rule that courts may dismiss for failure to comply with orders)
- Hernandez v. City of El Monte, 138 F.3d 393 (9th Cir. 1998) (explaining when factors strongly support dismissal)