(PC) Rhym v. State of California ( 2021 )


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  • 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CEDRIC RHYM, SR., No. 2:20-CV-0305-JAM-DMC-P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 STATE OF CALIFORNIA, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. 19 On November 23, 2020 the Court directed Plaintiff to file an amended complaint 20 within 30 days. Plaintiff was warned that failure to comply may result in dismissal of this action 21 for lack of prosecution and failure to comply with court rules and orders. See Local Rule 110. 22 More than 30 days have elapsed and Plaintiff has not complied. 23 On December 7, 2020, mail directed to Plaintiff was returned by the United States 24 Postal Service as undeliverable. Pursuant to Eastern District of California Local Rule 183(b), any 25 party appearing pro se must file and serve a notice of change of address within 63 days of mail 26 being returned. To date, more than 63 days have elapsed since mail was returned and Plaintiff 27 has not notified the Court of a change of address. 28 / / / 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, 7 | 53 (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 comply with an 12 | order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 13 1992). 14 Having considered these factors, and in light of Plaintiffs failure to file an 15 | amended complaint or a notice of change of address, the Court finds that dismissal of this action 16 || is 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. Yist, 951 F.2d 1153 (9th Cir. 1991). 25 26 | Dated: March 11, 2021 Sx

Document Info

Docket Number: 2:20-cv-00305

Filed Date: 3/12/2021

Precedential Status: Precedential

Modified Date: 6/19/2024