(PC) Thomas v. Diaz ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN THOMAS, Case No. 1:19-cv-00684-DAD-BAM (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION FOR 13 v. FAILURE TO PROSECUTE 14 DIAZ, et al., FOURTEEN (14) DAY DEADLINE 15 Defendants. 16 17 I. Background 18 Plaintiff John Thomas (“Plaintiff”) is a state prisoner proceeding pro se and in forma 19 pauperis in this civil rights action under 42 U.S.C. § 1983. This matter was referred to a United 20 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 Plaintiff initiated this action on May 17, 2019, together with a motion for temporary 22 restraining order and a preliminary injunction. (ECF Nos. 1, 3.) Plaintiff filed a notice of change 23 of address indicating that he was now housed at Correctional Training Facility in Soledad, 24 California, on August 23, 2019. (ECF No. 9.) On March 9, 2020, the undersigned issued 25 findings and recommendations recommending that Plaintiff’s motion for preliminary injunction 26 be denied. (ECF No. 11.) Those findings and recommendations were adopted in full on April 3, 27 2020. (ECF No. 12.) On May 7, 2020, the order adopting the findings and recommendations that 28 had been served to Plaintiff’s mailing address of record were returned as “Undeliverable, Return 1 to Sender.” Plaintiff has not responded to the Court’s findings and recommendations, filed a new 2 notice of change of address, or otherwise communicated with the Court. 3 II. Discussion 4 Plaintiff is required to keep the Court apprised of his current address at all times. Local 5 Rule 183(b) provides: 6 Address Changes. A party appearing in propria persona shall keep the Court and 7 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, and 8 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 without 9 prejudice for failure to prosecute. 10 Federal Rule of Civil Procedure 41(b) also provides for dismissal of an action for failure to 11 prosecute.1 12 According to the Court’s docket, Plaintiff’s address change was due no later than July 16, 13 2020. Plaintiff has failed to file a change of address and he has not otherwise been in contact 14 with the Court. “In determining whether to dismiss an action for lack of prosecution, the district 15 court is required to weigh several factors: (1) the public’s interest in expeditious resolution of 16 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; 17 (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less 18 drastic sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (internal quotation marks 19 and citation omitted); accord Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010); In re 20 Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006). 21 These factors guide a court in deciding what to do, and are not conditions that must be met in 22 order for a court to take action. In re PPA, 460 F.3d at 1226 (citation omitted). 23 Given Plaintiff’s failure to respond to this Court’s order, the expeditious resolution of 24 litigation and the Court’s need to manage its docket weigh in favor of dismissal. Id. at 1227. 25 More importantly, given the Court’s apparent inability to communicate with Plaintiff, there are no 26 other reasonable alternatives available to address Plaintiff’s failure to prosecute this action and his 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 failure to apprise the Court of his current address. Id. at 1228–29; Carey, 856 F.2d at 1441. The 2 Court will therefore recommend that this action be dismissed based on Plaintiff’s failure to 3 prosecute this action. 4 III. Conclusion and Recommendation 5 Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed, without 6 prejudice, based on Plaintiff’s failure to prosecute. Fed. R. Civ. P. 41(b); Local Rule 183(b). 7 These Findings and Recommendations will be submitted to the United States District 8 Judge assigned to the case, under the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 9 days after being served with these Findings and Recommendations, Plaintiff may file written 10 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 11 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 12 specified time may result in the waiver of the “right to challenge the magistrate’s factual 13 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 14 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 IT IS SO ORDERED. 16 17 Dated: July 20, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28