(PC) Demisi v. Phan ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MOHAMMAD KHALID DEMISI, No. 2:20-CV-1692-TLN-DMC-P 12 Plaintiff, 13 v. ORDER 14 STEPHANIE PHAN, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 18 U.S.C. § 1983. On November 13, 2020, mail directed to Plaintiff was returned by the United 19 States Postal Service as undeliverable. Under Eastern District of California Local Rule 183(b), 20 any party appearing pro se must file and serve a notice of change of address within 63 days of 21 mail being returned. To date, more than 63 days have elapsed since mail was returned and 22 Plaintiff has not notified the Court of a change of address. 23 Additionally, on November 3, 2020, the Court screened Plaintiff’s complaint as 24 required under 28 U.S.C. § 1915A, found the complaint defective, and dismissed it with leave to 25 file an amended complaint within 30 days. ECF No. 9. The Court warned Plaintiff that failure to 26 amend the complaint within the allotted time may result in dismissal of this action for lack of 27 prosecution and failure to comply with court rules and orders. See Local Rule 110. More than 30 28 days have elapsed. Plaintiff has not complied. 1 The Court must weigh five factors before imposing the harsh sanction of dismissal. 2 | See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. U.S. Postal 3 || Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's interest in 4 | expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) the risk of 5 || prejudice to opposing parties; (4) the public policy favoring disposition of cases on their merits; 6 || and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 46 F.3d 52, 53 7 | (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an appropriate 8 || sanction is considered a less drastic alternative sufficient to satisfy the last factor. See Malone, 9 | 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is appropriate where 10 | there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 11 | 1986). Dismissal has also been held to be an appropriate sanction for failure to inform the district 12 | court and parties of a change of address pursuant to local rules. See Carey v. King, 856 F.2d 13 | 1439, 1440-41 (9th Cir. 1988) (per curiam). 14 Having considered the above factors and Plaintiffs failure to a submit an amended 15 | complaint and a notice of change of address, the Court finds that dismissal of this action is 16 || appropriate. 17 Based on the foregoing, the undersigned recommends that this action be dismissed, 18 || without prejudice, for lack of prosecution and failure to comply with court rules and orders. 19 These findings and recommendations are submitted to the United States District 20 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 21 | after being served with these findings and recommendations, any party may file written 22 || objections with the court. Responses to objections shall be filed within 14 days after service of 23 || objections. Failure to file objections within the specified time may waive the right to appeal. See 24 | Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 25 26 | Dated: January 22, 2021 = 3S Co 27 DENNIS M. COTA 28 UNITED STATES MAGISTRATE JUDGE