-GBC (PC) Outlaw v. John/Jane Doe 1-7, No. 1:2010cv01021 - Document 22 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gerald B. Cohn on 11/7/2011 recommending that action be DISMISSED. Referred to Judge Anthony W. Ishii; Objections to F&R due by 11/22/2011. (Lundstrom, T)

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-GBC (PC) Outlaw v. John/Jane Doe 1-7 Doc. 22 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 LEE OUTLAW, 10 CASE NO. 1:10-cv-01021-AWI-GBC PC Plaintiff, 11 FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITHOUT PREJUDICE, FOR FAILURE TO PROSECUTE v. 12 JOHN/JANE DOE, WARDEN, et al., OBJECTIONS DUE WITHIN FIFTEEN DAYS 13 Defendants. 14 / 15 Plaintiff is or was a state prisoner proceeding pro se and in forma pauperis in this civil rights 16 action pursuant to 42 U.S.C. § 1983. On August 10, 2011, the Court mailed Plaintiff a Notice of 17 Docket Correction. Doc. 18. On August 18, 2011, the Court’s Order was returned as undeliverable. 18 Pursuant to Local Rule 183(b), a party appearing in propria persona is required to keep the 19 Court apprised of his or her current address at all times. Local Rule 183(b) provides, in pertinent 20 part: 21 22 23 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. 24 In the instant case, more than sixty-three days have passed since Plaintiff’s mail was returned, and 25 he has not notified the Court of a current address. 26 “In determining whether to dismiss an action for lack of prosecution, the district court is 27 required to consider several factors: ‘(1) the public’s interest in expeditious resolution of litigation; 28 1 Dockets.Justia.com 1 (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 2 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 3 sanctions.’” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (quoting Henderson v. Duncan, 779 4 F.2d 1421, 1423 (9th Cir. 1986)). These factors guide a court in deciding what to do, and are not 5 conditions that must be met in order for a court to take action. In re Phenylpropanolamine (PPA) 6 Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (citation omitted). 7 In this instance, Local Rule 183(b) provides for the dismissal of an action based on returned 8 mail. Given the Court’s inability to communicate with Plaintiff, dismissal is warranted and there 9 are no other reasonable alternatives available. See Carey, 856 F.2d at 1441. 10 11 Accordingly, it is hereby RECOMMENDED that this action be dismissed, without prejudice, based on Plaintiff’s failure to prosecute pursuant to Local Rule 183(b). 12 These Findings and Recommendations will be submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fifteen (15) days 14 after being served with these Findings and Recommendations, Plaintiff may file written objections 15 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 16 Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 17 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 19 IT IS SO ORDERED. 20 21 Dated: 0jh02o November 7, 2011 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 2

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