(PC) Hernandez v. Danielson et. al., No. 1:2006cv00258 - Document 37 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS recommending that this 14 Action be Dismissed for Plaintiff's Failure to Prosecute signed by Magistrate Judge Sheila K. Oberto on 8/16/2010. Referred to Judge Oliver W. Wanger. Objections to F&R due by 9/20/2010. (Sant Agata, S)
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(PC) Hernandez v. Danielson et. al. Doc. 37 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT FOR THE 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RAYMOND HERNANDEZ, 12 1:06-cv-00258 OWW SKO (PC) Plaintiff, FINDINGS AND RECOMMENDATION TO DISMISS CASE FOR PLAINTIFF'S FAILURE TO PROSECUTE 13 vs. 14 DR. KIM, M.D., et al., 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 April 9, 2010, the court issued an order reassigning 21 this case to U.S. Magistrate Judge Sheila K. Oberto and served 22 the order on plaintiff. 23 plaintiff was returned by the U.S. Postal Service as 24 undeliverable. 25 On May 3, 2010, the order served on On July 13, 2010, the court issued an Order to Show 26 Cause why case should not be dismissed for plaintiff's failure to 27 keep the court apprised of his current mailing address and served 28 the order on plaintiff. On August 2, 2010, the order served on -1Dockets.Justia.com 1 plaintiff was returned by the U.S. Postal Service as 2 undeliverable. 3 Pursuant to Local Rule 183(b), a party appearing in 4 propria persona is required to keep the court apprised of his or 5 her current address at all times. 6 in pertinent part: 7 Local Rule 83-183(b) provides, 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 (60) days thereafter of a current address, the Court may dismiss the action without prejudice for failure to prosecute. 8 9 10 11 12 In the instant case, sixty days have passed since plaintiff's 13 mail was returned and he has not notified the court of a current 14 address. 15 In determining whether to dismiss an action for lack of 16 prosecution, the court must consider several factors: (1) the 17 public’s interest in expeditious resolution of litigation; (2) 18 the court’s need to manage its docket; (3) the risk of prejudice 19 to the defendants; (4) the public policy favoring disposition of 20 cases on their merits; and (5) the availability of less drastic 21 sanctions. 22 1986); Carey v. King, 856 F.2d 1439 (9th Cir. 1988). 23 finds that the public’s interest in expeditiously resolving this 24 litigation and the court’s interest in managing the docket weigh 25 in favor of dismissal, as this case has been pending [amount of 26 time]. 27 based on plaintiff’s failure to notify the court of his address. 28 The third factor, risk of prejudice to defendants, also weighs in Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. The court The court cannot hold this case in abeyance indefinitely -2- 1 favor of dismissal, since a presumption of injury arises from the 2 occurrence of unreasonable delay in prosecuting an action. 3 Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). 4 fourth factor -- public policy favoring disposition of cases on 5 their merits -- is greatly outweighed by the factors in favor of 6 dismissal discussed herein. 7 to communicate with plaintiff based on plaintiff’s failure to 8 keep the court apprised of his current address, no lesser 9 sanction is feasible. 10 Finally, given the court’s inability RECOMMENDATION 11 12 The Accordingly, the court HEREBY RECOMMENDS that this action be dismissed for plaintiff's failure to prosecute. 13 These findings and recommendations are submitted to the 14 United States District Judge assigned to the case, pursuant to 15 the provisions of Title 28 U.S.C. § 636(b)(l). 16 days after being served with these findings and recommendations, 17 any party may file written objections with the court and serve a 18 copy on all parties. 19 "Objections to Magistrate Judge's Findings and Recommendations." 20 Any reply to the objections shall be served and filed within ten 21 days after service of the objections. 22 that failure to file objections within the specified time may 23 waive the right to appeal the District Court's order. 24 v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Within thirty Such a document should be captioned The parties are advised Martinez 25 26 IT IS SO ORDERED. 27 Dated: 0mee August 16, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 28 -3-
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