(PC) Robert Holmes v. Perez ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT HOLMES, Case No. 1:21-cv-01367-DAD-BAM (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION FOR 13 v. FAILURE TO PROSECUTE 14 PEREZ, et al., FOURTEEN (14) DAY DEADLINE 15 Defendants. 16 17 I. Background 18 Plaintiff Robert Holmes (“Plaintiff”) is a former state prisoner proceeding pro se in this 19 civil rights action under 42 U.S.C. § 1983. This matter was referred to a United States Magistrate 20 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On January 28, 2022, the undersigned issued findings and recommendations 22 recommending that this action proceed on Plaintiff’s complaint, filed September 13, 2021, against 23 Defendants Perez and Rocha for excessive force in violation of the Eighth Amendment and all 24 other claims and defendants be dismissed based on Plaintiff’s failure to state claims upon which 25 relief may be granted. (ECF No. 14.) Plaintiff was directed to file any objections within fourteen 26 days of service of the findings and recommendations. (Id. at 9.) 27 Plaintiff filed a notice of change of address on January 31, 2022. (ECF No. 15.) The 28 findings and recommendations were re-served on Plaintiff at his new address the same date. 1 However, on February 11, 2022, the findings and recommendations that were served on 2 Plaintiff’s new address were returned as “Undeliverable, Attempted-Not Known, Unable to 3 Forward.” Plaintiff has not responded to the Court’s findings and recommendations, filed a new 4 notice of change of address, or otherwise communicated with the Court. 5 II. Discussion 6 Plaintiff is required to keep the Court apprised of his current address at all times. Local 7 Rule 183(b) provides: 8 Address Changes. A party appearing in propria persona shall keep the Court and 9 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 10 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 11 prejudice for failure to prosecute. 12 Federal Rule of Civil Procedure 41(b) also provides for dismissal of an action for failure to 13 prosecute.1 14 Plaintiff’s address change was due no later than April 15, 2022. Plaintiff has failed to file 15 a change of address and he has not otherwise been in contact with the Court. “In determining 16 whether to dismiss an action for lack of prosecution, the district court is required to weigh several 17 factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 18 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 19 disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Carey v. 20 King, 856 F.2d 1439, 1440 (9th Cir. 1988) (internal quotation marks and citation omitted); accord 21 Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010); In re Phenylpropanolamine (PPA) 22 Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006). These factors guide a court in 23 deciding what to do, and are not conditions that must be met in order for a court to take action. In 24 re PPA, 460 F.3d at 1226 (citation omitted). 25 Given Plaintiff’s failure to respond to this Court’s findings and recommendations, the 26 expeditious resolution of litigation and the Court’s need to manage its docket weigh in favor of 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 dismissal. Id. at 1227. More importantly, given the Court’s apparent inability to communicate 2 with Plaintiff, there are no other reasonable alternatives available to address Plaintiff’s failure to 3 prosecute this action and his failure to apprise the Court of his current address. Id. at 1228–29; 4 Carey, 856 F.2d at 1441. The Court will therefore recommend that this action be dismissed based 5 on Plaintiff’s failure to prosecute this action. 6 III. Conclusion and Recommendation 7 Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed, without 8 prejudice, based on Plaintiff’s failure to prosecute. Fed. R. Civ. P. 41(b); Local Rule 183(b). 9 These Findings and Recommendations will be submitted to the United States District 10 Judge assigned to the case, under the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 11 days after being served with these Findings and Recommendations, Plaintiff may file written 12 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 13 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 14 specified time may result in the waiver of the “right to challenge the magistrate’s factual 15 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 16 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 17 IT IS SO ORDERED. 18 19 Dated: May 2, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28