(PC) Thomas v. Encinas ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANDRE THOMAS, Case No. 1:21-cv-01321-BAK (BAM) (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATIONS 14 ENCINAS, et al., REGARDING DISMISSAL OF ACTION FOR FAILURE TO PROSECUTE 15 Defendants. 14-DAY DEADLINE 16 17 18 Plaintiff Andre Thomas is a former inmate proceeding1 pro se and in forma pauperis in 19 this civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 I. BACKGROUND 22 On November 12, 2021, Plaintiff filed a Notice of Change of Address, providing an 23 address in San Diego, California. (Doc. 8.) 24 On January 6, 2022, the Court issued a Notice of Temporary Magistrate Judge Referral. 25 (Doc. 9.) The notice was served on Plaintiff at his address of record with the Court. (Id.) On 26 January 13, 2022, the notice was returned by the U.S. Postal Service marked undeliverable and 27 unable to forward. 1 After more than 63 days passed, on April 11, 2022, the Court issued an Order to Show 2 Cause (OSC) why the action should not be dismissed for a failure to prosecute. (Doc. 10.) 3 Plaintiff was afforded 21 days within which to respond to the OSC. (Id.) The Order was served on 4 Plaintiff at his address of record with the Court. (Id.) On April 25, 2022, the OSC was returned by 5 the U.S. Postal Service marked undeliverable and unable to forward. 6 II. DISCUSSION 7 Plaintiff is required to keep the Court apprised of his current address at all times. Local 8 Rule 183(b) provides: 9 Address Changes. A party appearing in propria persona shall keep the Court and 10 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 11 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 12 prejudice for failure to prosecute. 13 Federal Rule of Civil Procedure 41(b) also provides for dismissal of an action for failure to 14 prosecute.2 15 According to the Court’s docket, Plaintiff’s address change was due no later than March 16 24, 2022. When Plaintiff did not file a change of address, the Court issued an OSC directing 17 Plaintiff to respond within 21 days. To date, Plaintiff has failed to file a change of address, did 18 not file a response to the OSC, and has not otherwise been in contact with the Court. 19 “In determining whether to dismiss an action for lack of prosecution, the district court is 20 required to weigh several factors: (1) the public’s interest in expeditious resolution of litigation; 21 (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 22 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 23 sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (internal quotation marks and 24 citation omitted); accord Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010); In re 25 Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006). 26 These factors guide a court in deciding what to do and are not conditions that must be met in 27 2 1 order for a court to take action. In re PPA, 460 F.3d at 1226 (citation omitted). 2 Given Plaintiff’s failure to respond to this Court’s order, the expeditious resolution of 3 litigation and the Court’s need to manage its docket weigh in favor of dismissal. In re PPA, 460 4 F.3d at 1227. More importantly, given the Court’s apparent inability to communicate with 5 Plaintiff, there are no other reasonable alternatives available to address Plaintiff’s failure to 6 prosecute this action and his failure to apprise the Court of his current address. Id. at 1228–29; 7 Carey, 856 F.2d at 1441. The Court will therefore recommend that this action be dismissed based 8 on Plaintiff’s failure to prosecute this action. 9 III. CONCLUSION AND RECOMMENDATION 10 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a 11 district judge to this action. 12 Furthermore, the Court HEREBY RECOMMENDS that this action be dismissed, without 13 prejudice, based on Plaintiff’s failure to prosecute. Fed. R. Civ. P. 41(b); Local Rule 183(b). 14 These Findings and Recommendations will be submitted to the United States District 15 Judge assigned to the case, under the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 16 days after being served with these Findings and Recommendations, Plaintiff may file written 17 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 18 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 19 specified time may result in the waiver of the “right to challenge the magistrate’s factual 20 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 21 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 22 IT IS SO ORDERED. 23 24 Dated: April 26, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 25 26 27