Cabrera v. Barrett ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 FOR THE EASTERN DISTRICT OF CALIFORNIA 6 7 OMAR CABRERA, Case No. 1:19-cv-01189-DAD-BAM 8 Plaintiff, FINDINGS AND RECOMMENDATIONS 9 REGARDING DISMISSAL OF ACTION FOR v. FAILURE TO PROSECUTE 10 CHARLES MARTIN BARRETT, FOURTEEN (14) DAY DEADLINE 11 Defendant. 12 13 I. Background 14 Plaintiff Omar Cabrera (“Plaintiff”), a state prisoner proceeding pro se, filed this action on 15 August 30, 2019. (Doc. No. 1.) On October 10, 2019, the Court issued an order granting 16 Plaintiff’s application to proceed in forma paupers. (Doc. No. 3.) On October 29, 2019, the 17 Court’s order was returned as undeliverable. To date, Plaintiff has not filed a notice of change of 18 address or otherwise communicated with the Court. 19 II. Discussion 20 Plaintiff is required to keep the Court apprised of his current address at all times. Local 21 Rule 183(b) provides: 22 Address Changes. A party appearing in propria persona shall keep the Court 23 and opposing parties advised as to his or her current address. If mail directed to a plaintiff in propria persona by the Clerk is returned by the U.S. Postal Service, 24 and if such plaintiff fails to notify the Court and opposing parties within sixty- three (63) days thereafter of a current address, the Court may dismiss the action 25 without prejudice for failure to prosecute. 26 Federal Rule of Civil Procedure 41(b) also provides for dismissal of an action for failure to 27 28 1 prosecute.1 2 According to the Court’s docket, Plaintiff’s address change was due no later than 3 December 31, 2019. Plaintiff has failed to file a change of address and he has not otherwise been 4 in contact with the Court. “In determining whether to dismiss an action for lack of prosecution, 5 the district court is required to weigh several factors: (1) the public’s interest in expeditious 6 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 7 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the 8 availability of less drastic sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) 9 (internal quotation marks and citation omitted); accord Omstead v. Dell, Inc., 594 F.3d 1081, 10 1084 (9th Cir. 2010); In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 11 1217, 1226 (9th Cir. 2006). These factors guide a court in deciding what to do and are not 12 conditions that must be met in order for a court to take action. In re PPA, 460 F.3d at 1226 13 (citation omitted). 14 The expeditious resolution of litigation and the Court’s need to manage its docket weigh 15 in favor of dismissal. In re PPA, 460 F.3d at 1227. More importantly, given the Court’s apparent 16 inability to communicate with Plaintiff, there are no other reasonable alternatives available to 17 address Plaintiff’s failure to prosecute this action and his failure to apprise the Court of his 18 current address. Id. at 1228–29; Carey, 856 F.2d at 1441. The Court will therefore recommend 19 that this action be dismissed based on Plaintiff’s failure to prosecute this action. 20 III. Conclusion and Recommendation 21 Based on the foregoing, the Court HEREBY RECOMMENDS that this action be 22 dismissed, without prejudice, based on Plaintiff’s failure to prosecute. Fed. R. Civ. P. 41(b); 23 Local Rule 183(b). 24 These Findings and Recommendations will be submitted to the United States District 25 Judge assigned to the case, under the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 26 days after being served with these Findings and Recommendations, Plaintiff may file written 27 1 Courts may dismiss actions sua sponte under Rule 41(b) based on the plaintiff’s failure to prosecute. Hells Canyon 28 Pres. Council v. U. S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (citation omitted). 1 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 2 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 3 specified time may result in the waiver of the “right to challenge the magistrate’s factual 4 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 5 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 6 IT IS SO ORDERED. 7 8 Dated: January 14, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28