Dulaney v. Fresno Police Department et al, No. 1:2014cv01051 - Document 23 (E.D. Cal. 2016)

Court Description: FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED, Without Prejudice, Based on Plaintiff's Failure to Prosecute re 18 Amended Complaint signed by Magistrate Judge Barbara A. McAuliffe on 1/8/2016. Referred to Judge Drozd. Objections to F&R due within fourteen (14) days. (Jessen, A)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 MARIO DULANEY, Plaintiff, 11 12 13 Case No. 1:14-cv-01051-DAD-BAM v. JERRY DYER, et al., Defendants. 14 FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION WITHOUT PREJUDICE FOR FAILURE TO PROSECUTE FOURTEEN-DAY DEADLINE 15 _____________________________________/ 16 17 I. Background 18 Plaintiff Mario Dulaney, a state prisoner proceeding pro se, filed this civil rights action 19 pursuant to 42 U.S.C. § 1983 on July 3, 2014. (Doc. 1.) 20 On October 13, 2015, the Court issued an order dismissing Plaintiff’s second amended 21 complaint and granting Plaintiff leave to amend within thirty (30) days. (Doc. 21.) On October 22 27, 2015, the Court’s order was returned by the United States Postal Service as undeliverable, 23 unable to forward. 24 On December 4, 2015, due to the appointment of Judge Dale A. Drozd to the position of 25 United States District Judge, this action was reassigned from District Judge Lawrence J. O’Neill to 26 District Judge Dale A. Drozd for all further proceedings. (Doc. 22.) On December 30, 2015, the 27 Court’s reassignment order was returned by the United States Postal Service as Undeliverable 28 (Inactive). 1 II. 2 Plaintiff is required to keep the Court apprised of his current address at all times. Local Discussion 3 Rule 183(b) provides: 4 Address Changes. A party appearing in propria persona shall keep the Court and 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 if such plaintiff fails to notify the Court and opposing parties within sixtythree (63) days thereafter of a current address, the Court may dismiss the action without prejudice for failure to prosecute. 5 6 7 8 9 Federal Rule of Civil Procedure 41(b) also provides for dismissal of an action for failure to prosecute.1 10 11 According to the Court’s docket, Plaintiff’s address change was due no later than January 4, 2016. Plaintiff has failed to file a change of address and he has not otherwise been in contact 12 with the Court. “In determining whether to dismiss an action for lack of prosecution, the district 13 court is required to weigh several factors: (1) the public’s interest in expeditious resolution of 14 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) 15 16 17 18 19 20 the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (citation omitted); accord Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010); In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006). These factors guide a court in deciding what to do, and are not conditions that must be met in order for a court to take action. In re PPA, 460 F.3d at 1226 (citation omitted). 21 Given Plaintiff’s failure to respond to this Court’s orders and the delay in this action, 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 26 prosecute this action and his failure to apprise the Court of his current address. In re PPA, 460 F.3d at 1228-29; Carey, 856 F.2d at 1441. The Court will therefore recommend that this action be 27 28 1 Courts may dismiss actions sua sponte under Rule 41(b) based on a plaintiff’s failure to prosecute. Hells Canyon Preservation Council v. U. S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (citation omitted). 2 1 dismissed based on Plaintiff’s failure to prosecute this action. 2 III. 3 For the reasons stated, it is HEREBY RECOMMENDED that this action be dismissed, Conclusion and Recommendation 4 without prejudice, based on Plaintiff’s failure to prosecute. Fed. R. Civ. P. 41(b); Local Rule 5 183(b). 6 These Findings and Recommendations will be submitted to the United States District 7 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 8 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 9 file written objections with the Court. The document should be captioned “Objections to 10 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 11 objections within the specified time may result in the waiver of the “right to challenge the 12 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 13 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 15 16 17 IT IS SO ORDERED. Dated: /s/ Barbara January 8, 2016 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 3

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