(PC) Dennis Elijah Jemison v. Navaro et al, No. 1:2009cv01978 - Document 13 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS Recommending that Complaint be DISMISSED Without Prejudice for Plaintiff's Failure to Prosecute, signed by Magistrate Judge Gary S. Austin on 7/16/2010, referred to Judge O'Neill. Objections to F&R due by 8/19/2010(Marrujo, C)
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(PC) Dennis Elijah Jemison v. Navaro et al Doc. 13 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT FOR THE 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DENNIS ELIJAH JEMISON, 12 1:09-cv-01978-LJO-GSA (PC) Plaintiff, FINDINGS AND RECOMMENDATION TO DISMISS CASE FOR PLAINTIFF'S FAILURE TO PROSECUTE 13 vs. 14 NAVARO, et al., OBJECTIONS, IF ANY, DUE IN 30 DAYS 15 Defendants. 16 ________________________________/ 17 Plaintiff is a prisoner proceeding pro se and in forma pauperis with this civil rights action 18 pursuant to Bivens vs. Six Unknown Agents, 403 U.S. 388 (1971). 19 On April 15, 2010, the court issued an order denying plaintiff's motion to open discovery 20 and for appointment of counsel (“Order”) and served it on plaintiff at his last known address 21 according to the court’s record. (Doc. 12.) The United States Postal Service returned the Order 22 on April 26, 2010 as undeliverable. Plaintiff has not notified the court of any change in his 23 address. Absent such notice, service at a party’s prior address is fully effective. Local Rule 24 182(f). 25 Pursuant to Local Rule 183(b), a party appearing in propria persona is required to keep 26 the court apprised of his or her current address at all times. Local Rule 183(b) provides, in 27 pertinent part: 28 -1Dockets.Justia.com 1 2 3 4 5 6 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. In the instant case, more than sixty-three days have passed since plaintiff’s mail was returned and he has not notified the court of a current address. In determining whether to dismiss an action for lack of prosecution, the court must 7 consider several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the 8 court’s need to manage its docket; (3) the risk of prejudice to the respondents; (4) the public 9 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 10 alternatives. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 11 F.2d 1439 (9th Cir. 1988). The court finds that the public’s interest in expeditiously resolving 12 this litigation and the court’s interest in managing the docket weigh in favor of dismissal, as this 13 case has been pending since November 3, 2009. The court cannot hold this case in abeyance 14 indefinitely based on plaintiff’s failure to notify the court of his address. The third factor, risk of 15 prejudice to respondents, also weighs in favor of dismissal, since a presumption of injury arises 16 from the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air West, 542 17 F.2d 522, 524 (9th Cir. 1976). The fourth factor, public policy favoring disposition of cases on 18 their merits, is greatly outweighed by the factors in favor of dismissal discussed herein. Finally, 19 given the court’s inability to communicate with plaintiff based on plaintiff’s failure to keep the 20 court apprised of his current address, no lesser sanction is feasible. 21 22 23 24 RECOMMENDATIONS Based on the foregoing, the court HEREBY RECOMMENDS that this action be DISMISSED without prejudice for plaintiff's failure to prosecute. These Findings and Recommendations are submitted to the Honorable Lawrence J. 25 O'Neill, United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636 26 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, 27 Eastern District of California. Within thirty (30) days after being served with a copy, any party 28 may file written objections with the court and serve a copy on all parties. Such a document -2- 1 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 2 Replies to the objections shall be served and filed within ten (10) court days (plus three days if 3 served by mail) after service of the objections. The Court will then review the Magistrate 4 Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file 5 objections within the specified time may waive the right to appeal the District Court’s order. 6 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 7 8 IT IS SO ORDERED. Dated: 220hhe July 16, 2010 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-
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