(PC)Peyton v. Brown et al, No. 1:2008cv01920 - Document 18 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS Recommending that 1 Case be Dismissed for Plaintiff's Failure to Prosecute, signed by Magistrate Judge Sheila K. Oberto on 7/1/2010; Referred to Judge Wanger. (Objections to F&R due by 8/5/2010) (Marrujo, C)
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(PC)Peyton v. Brown et al Doc. 18 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT FOR THE 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LEE PEYTON, 12 1:08-cv-01920-OWW-SKO-(PC) Plaintiff, FINDINGS AND RECOMMENDATION TO DISMISS CASE FOR PLAINTIFF'S FAILURE TO PROSECUTE 13 vs. 14 EDMUND G. BROWN, 15 Defendants. 16 ________________________________/ 17 Plaintiff is a state prisoner proceeding pro se and in 18 forma pauperis with a civil rights action pursuant to 42 U.S.C. 19 section 1983. 20 On March 28, 2010, the court issued an order dismissing 21 complaint with leave to amend 22 On April 7, 2010, the order served on plaintiff was returned by 23 the U.S. Postal Service as undeliverable. 24 and served the order on plaintiff. Pursuant to Local Rule 183(b), a party appearing in 25 propria persona is required to keep the court apprised of his or 26 her current address at all times. 27 pertinent part: 28 ///// Local Rule 183(b) provides, in -1Dockets.Justia.com 1 If mail directed to a plaintiff in propria persona by the Clerk is returned by the U.S. Postal Service, and 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 prejudice for failure to prosecute. 2 3 4 5 6 In the instant case, sixty days have passed since plaintiff's 7 mail was returned and he has not notified the court of a current 8 address. 9 In determining whether to dismiss an action for lack of 10 prosecution, the court must consider several factors: (1) the 11 public’s interest in expeditious resolution of litigation; (2) 12 the court’s need to manage its docket; (3) the risk of prejudice 13 to the defendants; (4) the public policy favoring disposition of 14 cases on their merits; and (5) the availability of less drastic 15 sanctions. 16 1986); Carey v. King, 856 F.2d 1439 (9th Cir. 1988). 17 finds that the public’s interest in expeditiously resolving this 18 litigation and the court’s interest in managing the docket weigh 19 in favor of dismissal, as this case has been pending [amount of 20 time]. 21 based on plaintiff’s failure to notify the court of his address. 22 The third factor, risk of prejudice to defendants, also weighs in 23 favor of dismissal, since a presumption of injury arises from the 24 occurrence of unreasonable delay in prosecuting an action. 25 Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). 26 fourth factor -- public policy favoring disposition of cases on 27 their merits -- is greatly outweighed by the factors in favor of 28 dismissal discussed herein. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. The court The court cannot hold this case in abeyance indefinitely The Finally, given the court’s inability -2- 1 to communicate with plaintiff based on plaintiff’s failure to 2 keep the court apprised of his current address, no lesser 3 sanction is feasible. 4 RECOMMENDATION 5 6 Accordingly, the court HEREBY RECOMMENDS that this action be dismissed for plaintiff's failure to prosecute. 7 These findings and recommendations are submitted to the 8 United States District Judge assigned to the case, pursuant to 9 the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty 10 days after being served with these findings and recommendations, 11 any party may file written objections with the court and serve a 12 copy on all parties. 13 "Objections to Magistrate Judge's Findings and Recommendations." 14 Any reply to the objections shall be served and filed within ten 15 days after service of the objections. 16 that failure to file objections within the specified time may 17 waive the right to appeal the District Court's order. 18 v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 IT IS SO ORDERED. 20 Dated: 0mee July 1, 2010 Such a document should be captioned The parties are advised Martinez /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 -3-
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