(PC) Renteria v. Matharu ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LUIS RENTERIA, 1:18-cv-00497-LJO-GSA-PC 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE 13 vs. BE DISMISSED, WITHOUT PREJUDICE, FOR PLAINTIFF’S FAILURE TO 14 KABIR MATHARU, et al., PROSECUTE 15 Defendants. OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS 16 17 18 19 20 I. BACKGROUND 21 Luis Renteria (“Plaintiff”) is a prisoner proceeding pro se and in forma pauperis in this 22 civil rights action pursuant to 42 U.S.C. § 1983. On April 12, 2018, Plaintiff filed the 23 Complaint commencing this action. (ECF No. 1.) On May 29, 2018, Plaintiff filed the First 24 Amended Complaint as a matter of course. (ECF No. 15.) On December 14, 2018, the court 25 issued a screening order dismissing the First Amended Complaint for violation of Local Rule 26 220 and failure to state a claim, with leave to amend. (ECF No. 22.) On March 6, 2019, 27 Plaintiff filed the Second Amended Complaint, which awaits the court’s requisite screening 28 under 28 U.S.C. § 1915. (ECF No. 27.) 1 II. FINDINGS 2 On May 21, 2019, the court issued an order (“Order”) denying Plaintiff’s motion for 3 preliminary injunction filed on April 15, 2019. (ECF No. 32.) The Order was served upon 4 Plaintiff at his last known address at the Los Angeles County Jail in Los Angeles, California. 5 (Id. see notice of conventional service.) On June 8, 2019, the United States Postal Service 6 returned the Order as undeliverable. (Court Docket.) A notation on the envelope indicated that 7 the mail was “Not Deliverable as Addressed, Unable to Forward.” (Id.) 8 Plaintiff has not notified the court of any change in his address. Absent such notice, 9 service at a party’s prior address is fully effective. Local Rule 182(f). Pursuant to Local Rule 10 183(b), a party appearing in propria persona is required to keep the court apprised of his or her 11 current address at all times. Local Rule 183(b) provides: 12 “A party appearing in propria persona shall keep the Court and opposing parties advised as to his or her current address. If mail 13 directed to a plaintiff in propria persona by the Clerk is returned by the U.S. Postal Service, and if such plaintiff fails to notify the 14 Court and opposing parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without 15 prejudice for failure to prosecute.” 16 In this case, more than sixty-three days have passed since Plaintiff’s mail was returned 17 and he has not notified the court of a current address. 18 In determining whether to dismiss an action for lack of prosecution, the court must 19 consider several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the 20 court’s need to manage its docket; (3) the risk of prejudice to the respondents; (4) the public 21 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 22 alternatives. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); Omstead v. Dell, 594 23 F.3d 1081, 1084 (9th Cir. 2010). The court finds that the public’s interest in expeditiously 24 resolving this litigation and the court’s interest in managing the docket weigh in favor of 25 dismissal, as this case has been pending since April 12, 2018. The court cannot hold this case 26 in abeyance indefinitely based on Plaintiff’s failure to notify the court of his address. The third 27 factor, risk of prejudice to respondents, also weighs in favor of dismissal, since a presumption 28 of injury arises from the occurrence of unreasonable delay in prosecuting an action. Anderson 1 v. Air West, 542 F.2d 522, 524 (9th Cir. 1976); In re Phenylpropanolamine (PPA) Products 2 Liability Litigation, 460 F.3d 1217, 1228-29 (9th Cir. 2006). The fourth factor, public policy 3 favoring disposition of cases on their merits, is greatly outweighed by the factors in favor of 4 dismissal discussed herein. Finally, given the court’s inability to communicate with Plaintiff 5 based on Plaintiff’s failure to keep the court apprised of his current address, no lesser sanction 6 than dismissal of the case is feasible. However, inasmuch as the dismissal being considered in 7 this case is without prejudice, the court is stopping short of issuing the harshest possible 8 sanction of dismissal with prejudice. 9 Based on this analysis, the court finds that this case should be dismissed, without 10 prejudice, for Plaintiff’s failure to prosecute. 11 III. RECOMMENDATIONS 12 Based on the foregoing, the court HEREBY RECOMMENDS that: 13 1. This case be DISMISSED without prejudice, based on Plaintiff’s failure to 14 prosecute; and 15 2. The Clerk of Court be directed to close this case. 16 These findings and recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within fourteen 18 (14) days after the date of service of these findings and recommendations, Plaintiff may file 19 written objections with the court. Such a document should be captioned “Objections to 20 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 21 objections within the specified time may waive the right to appeal the District Court’s order. 22 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 IT IS SO ORDERED. 24 25 Dated: August 20, 2019 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 26 27 28