(PC)Martin v. Pfeiffer ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JARED ANDREW MARTIN, Case No. 1:22-cv-00889-JLT-BAM (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION FOR 13 v. FAILURE TO PROSECUTE 14 PFEIFFER, et al., FOURTEEN (14) DAY DEADLINE 15 Defendants. 16 17 I. Background 18 Plaintiff Jared Andrew Martin (“Plaintiff”) is a county jail inmate and former state 19 prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. 20 § 1983. This action proceeds on Plaintiff’s first amended complaint against Defendant Cardenas 21 for failure to protect in violation of the Eighth Amendment. 22 On April 11, 2023, this case was reassigned to District Judge Jennifer L. Thurston. (ECF 23 No. 27.) On April 17, 2023, the Court’s order reassigning the case was returned as 24 “Undeliverable, Not in Custody.” Plaintiff’s notice of change of address was therefore due on or 25 before June 20, 2023. Local Rule 183(b). 26 Plaintiff has not filed a notice of change of address or otherwise communicated with the 27 Court. 28 /// 1 II. Discussion 2 Plaintiff is required to keep the Court apprised of his current address at all times. Local 3 Rule 183(b) provides: 4 Address Changes. A party appearing in propria persona shall keep the Court and 5 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 6 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 7 prejudice for failure to prosecute. 8 Federal Rule of Civil Procedure 41(b) also provides for dismissal of an action for failure to 9 prosecute.1 10 Plaintiff’s address change was due no later than June 20, 2023. Plaintiff has failed to file 11 a change of address and he has not otherwise been in contact with the Court. “In determining 12 whether to dismiss an action for lack of prosecution, the district court is required to weigh several 13 factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 14 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 15 disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Carey v. 16 King, 856 F.2d 1439, 1440 (9th Cir. 1988) (internal quotation marks and citation omitted); accord 17 Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010); In re Phenylpropanolamine (PPA) 18 Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006). These factors guide a court in 19 deciding what to do, and are not conditions that must be met in order for a court to take action. In 20 re PPA, 460 F.3d at 1226 (citation omitted). 21 Given Plaintiff’s failure to update his address or communicate with the Court, the 22 expeditious resolution of litigation and the Court’s need to manage its docket weigh in favor of 23 dismissal. Id. at 1227. More importantly, given the Court’s apparent inability to communicate 24 with Plaintiff, there are no other reasonable alternatives available to address Plaintiff’s failure to 25 prosecute this action and his failure to apprise the Court of his current address. Id. at 1228–29; 26 Carey, 856 F.2d at 1441. The Court will therefore recommend that this action be dismissed based 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 on Plaintiff’s failure to prosecute this action. 2 III. Conclusion and Recommendation 3 Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed, without 4 prejudice, based on Plaintiff’s failure to prosecute. Fed. R. Civ. P. 41(b); Local Rule 183(b). 5 These Findings and Recommendations will be submitted to the United States District 6 Judge assigned to the case, under the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 7 days after being served with these Findings and Recommendations, the parties may file written 8 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 9 Findings and Recommendations.” The parties are advised that failure to file objections within the 10 specified time may result in the waiver of the “right to challenge the magistrate’s factual 11 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 12 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 13 IT IS SO ORDERED. 14 15 Dated: June 28, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28