(PC) Brummett v. Martinez ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MELVIN RAY BRUMMETT, JR., Case No. 1:21-cv-00086-BAM (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATIONS 14 LOPEZ, et al., REGARDING DISMISSAL OF ACTION FOR FAILURE TO PROSECUTE 15 Defendants. FOURTEEN (14) DAY DEADLINE 16 17 I. Background 18 Plaintiff Melvin Ray Brummett, Jr. (“Plaintiff”) is a state prisoner proceeding pro se and 19 in forma pauperis in this civil rights action under 42 U.S.C. § 1983. This matter was referred to a 20 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On February 5, 2021, Plaintiff filed a motion requesting a stay and abeyance of this case 22 for thirty days while he was being transported from STAF-Corcoran to the Shasta County Jail for 23 a resentencing hearing on February 9, 2021. (ECF No. 7.) As the complaint had not yet been 24 screened and there were no pending deadlines to be stayed, the Court denied the stay of action but 25 advised Plaintiff to inform the Court when he was returned to SATF-Corcoran by filing a notice 26 of change of address. (ECF No. 8.) That order was mailed to Plaintiff at the Shasta County Jail. 27 On February 24, 2021, the Court’s order was returned as “Undeliverable, Not in Custody.” 28 Plaintiff has not filed a new notice of change of address or otherwise communicated with the 1 Court. 2 II. Discussion 3 Plaintiff is required to keep the Court apprised of his current address at all times. Local 4 Rule 183(b) provides: 5 Address Changes. A party appearing in propria persona shall keep the Court and 6 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 7 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 8 prejudice for failure to prosecute. 9 Federal Rule of Civil Procedure 41(b) also provides for dismissal of an action for failure to 10 prosecute.1 11 According to the Court’s docket, Plaintiff’s address change was due no later than April 12 28, 2021. Plaintiff has failed to file a change of address and he has not otherwise been in contact 13 with the Court. “In determining whether to dismiss an action for lack of prosecution, the district 14 court is required to weigh several factors: (1) the public’s interest in expeditious resolution of 15 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; 16 (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less 17 drastic sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (internal quotation marks 18 and citation omitted); accord Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010); In re 19 Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006). 20 These factors guide a court in deciding what to do, and are not conditions that must be met in 21 order for a court to take action. In re PPA, 460 F.3d at 1226 (citation omitted). 22 Given Plaintiff’s failure to respond to this Court’s order, the expeditious resolution of 23 litigation and the Court’s need to manage its docket weigh in favor of dismissal. Id. at 1227. 24 More importantly, given the Court’s apparent inability to communicate with Plaintiff, there are no 25 other reasonable alternatives available to address Plaintiff’s failure to prosecute this action and his 26 failure to apprise the Court of his current address. Id. at 1228–29; Carey, 856 F.2d at 1441. The 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 Court will therefore recommend that this action be dismissed based on Plaintiff’s failure to 2 prosecute this action. 3 III. Conclusion and Recommendation 4 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a 5 district judge to this action. 6 Furthermore, the Court HEREBY RECOMMENDS that this action be dismissed, without 7 prejudice, based on Plaintiff’s failure to prosecute. Fed. R. Civ. P. 41(b); Local Rule 183(b). 8 These Findings and Recommendations will be submitted to the United States District 9 Judge assigned to the case, under the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 10 days after being served with these Findings and Recommendations, Plaintiff may file written 11 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 12 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 13 specified time may result in the waiver of the “right to challenge the magistrate’s factual 14 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 15 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 16 IT IS SO ORDERED. 17 18 Dated: June 7, 2021 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28