(HC) Mendoza v. CSP - Sacramento, No. 1:2009cv00972 - Document 7 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Sandra M. Snyder on 10/5/2009 recommending that action be Dismissed. Objections to F&R due by 10/29/2009. District Judge Oliver W. Wanger assigned to case. The new case number is 1:09-cv-972-OWW-BAK_SMS-HC.(Lundstrom, T)
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(HC) Mendoza v. CSP - Sacramento Doc. 7 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT FOR THE 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT VINCENT MENDOZA, 12 1:09-cv-0972-BAK-SMS (HC) Petitioner, FINDINGS AND RECOMMENDATION TO DISMISS CASE FOR PETITIONER'S FAILURE TO PROSECUTE 13 vs. 14 CSP-SACRAMENTO, 15 16 ORDER DIRECTING OBJECTIONS TO BE FILED WITHIN TWENTY DAYS Respondent. ________________________________/ ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE TO CASE 17 18 19 Petitioner is a state prisoner proceeding pro se and in 20 forma pauperis in a habeas action pursuant to 28 U.S.C. § 2254. 21 On June 17, 2009, the court issued an Order and served 22 the Order on Petitioner. On June 30, 2009, the Order served on 23 Petitioner was returned by the U.S. Postal Service as 24 undeliverable. 25 Pursuant to Local Rule 83-183(b), a party appearing in 26 propria persona is required to keep the court apprised of his or 27 her current address at all times. Local Rule 83-183(b) provides, 28 -1Dockets.Justia.com 1 in pertinent part as follows: 2 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. 3 4 5 6 7 In the instant case, more than sixty days have passed since 8 Petitioner's mail was returned and he has not notified the court 9 of a current address. 10 In determining whether to dismiss an action for lack of 11 prosecution, the court must consider several factors: (1) the 12 public’s interest in expeditious resolution of litigation; (2) 13 the court’s need to manage its docket; (3) the risk of prejudice 14 to the defendants; (4) the public policy favoring disposition of 15 cases on their merits; and (5) the availability of less drastic 16 sanctions. 17 1986); Carey v. King, 856 F.2d 1439 (9th Cir. 1988). 18 finds that the public’s interest in expeditiously resolving this 19 litigation and the Court’s interest in managing the docket weigh 20 in favor of dismissal, as this case has been pending since May 21 26, 2009. 22 indefinitely based on Petitioner’s failure to notify the Court of 23 his address. 24 also weighs in favor of dismissal, since a presumption of injury 25 arises from the occurrence of unreasonable delay in prosecuting 26 an action. 27 1976). 28 of cases on their merits -- is greatly outweighed by the factors Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. The Court The Court cannot hold this case in abeyance The third factor, risk of prejudice to defendants, Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. The fourth factor -- public policy favoring disposition -2- 1 in favor of dismissal discussed herein. 2 Court’s inability to communicate with Petitioner based on 3 Petitioner’s failure to keep the Court apprised of his current 4 address, no lesser sanction is feasible. 5 ORDER 6 7 The Court HEREBY DIRECTS the Clerk of the Court to assign a United States District Judge to this case. 8 RECOMMENDATION 9 10 Finally, given the Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed for Petitioner's failure to prosecute. 11 These Findings and Recommendations are submitted to the 12 United States District Judge assigned to the case, pursuant to 13 the provisions of Title 28 U.S.C. § 636(b)(l). 14 (20) days after being served with these Findings and 15 Recommendations, any party may file written objections with the 16 court and serve a copy on all parties. 17 captioned "Objections to Magistrate Judge's Findings and 18 Recommendations." 19 and filed within ten days after service of the objections. 20 parties are advised that failure to file objections within the 21 specified time may waive the right to appeal the District Court's 22 order. Within twenty Such a document should be Any reply to the objections shall be served Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 24 IT IS SO ORDERED. 25 Dated: icido3 October 5, 2009 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 26 27 28 -3- The
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