(PC) Candelario v. Ouirque et al, No. 1:2009cv01533 - Document 17 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gerald B. Cohn on 12/23/2010 recommending dismissal of action for failure to prosecute. Referred to Judge Anthony W. Ishii; Objections to F&R due by 1/24/2011.(Lundstrom, T)
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(PC) Candelario v. Ouirque et al Doc. 17 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ANTONIO CANDELARIO, 10 Plaintiff, 11 12 CASE NO. 1:09-cv-01533-AWI-GBC PC FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING ACTION, WITHOUT PREJUDICE, FOR FAILURE TO PROSECUTE v. J. OUIRQUE, et al., OBJECTIONS DUE WITHIN TWENTY DAYS 13 Defendants. / 14 15 Plaintiff Antonio Candelario (“Plaintiff”) is a state prisoner proceeding pro se and in forma 16 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on August 17 31, 2009. On September 9, 2010, the Court issued an order reassigning the case, and on September 18 28, 2010, the order was returned by the United States Postal Service as undeliverable, unable to 19 forward. 20 Pursuant to Local Rule 183(b), a party appearing in propria persona is required to keep the 21 Court apprised of his or her current address at all times. Local Rule 183(b) provides, in pertinent 22 part: 23 25 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-three (63) days thereafter of a current address, the Court may dismiss the action without prejudice for failure to prosecute. 26 In the instant case, more than sixty-three days have passed since Plaintiff’s mail was returned, and 27 he has not notified the Court of a current address. 24 28 “In determining whether to dismiss an action for lack of prosecution, the district court is 1 Dockets.Justia.com 1 required to consider several factors: ‘(1) the public’s interest in expeditious resolution of litigation; 2 (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 3 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 4 sanctions.’” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (quoting Henderson v. Duncan, 779 5 F.2d 1421, 1423 (9th Cir. 1986)). These factors guide a court in deciding what to do, and are not 6 conditions that must be met in order for a court to take action. In re Phenylpropanolamine (PPA) 7 Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (citation omitted). 8 In this instance, Local Rule 183(b) provides for the dismissal of an action based on returned 9 mail. Given the Court’s inability to communicate with Plaintiff, dismissal is warranted and there 10 are no other reasonable alternatives available. See Carey, 856 F.2d at 1441. 11 12 Accordingly, it is HEREBY RECOMMENDED, that this action be dismissed, without prejudice, based on Plaintiff’s failure to prosecute. 13 These findings and recommendations will be submitted to the United States District Judge 14 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty (20) 15 days after being served with these findings and recommendations, Plaintiff may file written 16 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 17 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 18 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 19 1153 (9th Cir. 1991). 20 IT IS SO ORDERED. 21 22 Dated: cm411 December 30, 2010 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 2