(PC) Walters v. Mason et al, No. 2:2015cv00822 - Document 25 (E.D. Cal. 2016)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 11/22/16 RECOMMENDING that this action be dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and orders. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Dillon, M)

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(PC) Walters v. Mason et al Doc. 25 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANDREW WALTERS, 12 Plaintiff, 13 No. 2:15-cv-0822-KJM-CMK-P vs. FINDINGS AND RECOMMENATION 14 DAVID A. MASON, et al., 15 Defendants. / 16 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 17 U.S.C. § 1983. 18 On August 31, 2016, mail directed to plaintiff was returned by the United States 19 Postal Service as undeliverable. Pursuant to Eastern District of California Local Rule 183(b), 20 any party appearing pro se must file and serve a notice of change of address within 63 days of 21 mail being returned. To date, more than 63 days have elapsed since mail was returned and 22 plaintiff has not notified the court of a change of address. 23 The court must weigh five factors before imposing the harsh sanction of 24 dismissal. See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. 25 U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's 26 1 Dockets.Justia.com 1 interest in expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) 2 the risk of prejudice to opposing parties; (4) the public policy favoring disposition of cases on 3 their merits; and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 4 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an 5 appropriate sanction is considered a less drastic alternative sufficient to satisfy the last factor. 6 See Malone, 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is 7 appropriate where there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 8 1423 (9th Cir. 1986). Dismissal has also been held to be an appropriate sanction for failure to 9 inform the district court and parties of a change of address pursuant to local rules. See Carey v. 10 King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (per curiam). 11 12 Having considered these factors, and in light of plaintiff’s failure to submit a notice of change of address, the court finds that dismissal of this action is appropriate. 13 Based on the foregoing, the undersigned recommends that this action be 14 dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and 15 orders. 16 These findings and recommendations are submitted to the United States District 17 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 18 after being served with these findings and recommendations, any party may file written 19 objections with the court. Responses to objections shall be filed within 14 days after service of 20 objections. Failure to file objections within the specified time may waive the right to appeal. 21 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 22 23 24 25 DATED: November 22, 2016 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 26 2

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