(PC) Flores v. Fresno County Board of Supervisors et al, No. 1:2006cv01790 - Document 10 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge William M. Wunderlich on 4/8/2009, Recommending that the 1 Action be Dismissed for Plaintiff's Failure to Prosecute. Matter referred to Judge O'Neill. (Objections to F&R due by 5/11/2009) (Figueroa, O)
Download PDF
<![CDATA[
(PC) Flores v. Fresno County Board of Supervisors et al Doc. 10 1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE EASTERN DISTRICT OF CALIFORNIA 4 5 6 7 8 9 EDWARD JAVIER FLORES, Plaintiff, 10 vs. 11 1:06 CV 01790 LJO WMW PC FINDINGS AND RECOMMENDATION 12 MARGARET MIMS, et al., 13 Defendants. 14 15 Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 16 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. 17 § 1915. 18 On January 23, 2009, the court sent to plaintiff an order requiring Plaintiff to file 19 an amended complaint or notify the court of his willingness to proceed only on claims found to 20 be cognizable. On February 3, 2009, the order served on plaintiff was returned by the U.S. 21 Postal Service as undeliverable. 22 Pursuant to Local Rule 83-183(b), a party appearing in propria persona is required 23 to keep the court apprised of his or her current address at all times. Local Rule 83-183(b) 24 provides, in pertinent part: 25 26 1 Dockets.Justia.com 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. 1 2 3 4 In the instant case, sixty days have passed since plaintiff's mail was returned and he has not 5 notified the court of a current address. In determining whether to dismiss an action for lack of prosecution, the court 6 7 must consider several factors: (1) the public’s interest in expeditious resolution of litigation; (2) 8 the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 9 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 10 sanctions. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 11 1439 (9th Cir. 1988). The court finds that the public’s interest in expeditiously resolving this 12 litigation and the court’s interest in managing the docket weigh in favor of dismissal. The court 13 cannot hold this case in abeyance indefinitely based on plaintiff’s failure to notify the court of his 14 address. The third factor, risk of prejudice to defendants, also weighs in favor of dismissal, since 15 a presumption of injury arises from the occurrence of unreasonable delay in prosecuting an 16 action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public 17 policy favoring disposition of cases on their merits -- is greatly outweighed by the factors in favor 18 of dismissal discussed herein. Finally, given the court’s inability to communicate with plaintiff 19 based on plaintiff’s failure to keep the court apprised of his current address, no lesser sanction is 20 feasible. 21 22 23 Accordingly, the court HEREBY RECOMMENDS that this action be dismissed for plaintiff's failure to prosecute. These findings and recommendations are submitted to the United States District 24 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 25 thirty days after being served with these findings and recommendations, plaintiff may file written 26 2 1 objections with the court. Such a document should be captioned "Objections to Magistrate 2 Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections 3 within the specified time may waive the right to appeal the District Court's order. Martinez v. 4 Ylst, 951 F.2d 1153 (9th Cir. 1991). 5 IT IS SO ORDERED. 6 Dated: April 8, 2009 mmkd34 /s/ William M. Wunderlich UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
