(PC)Martinez v. Drew et al, No. 1:2011cv01377 - Document 6 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS Recommending Dismissal of Action, without Prejudice, for Failure to Either Pay Filing Fee or File Application to Proceed in Forma Pauperis and or Failure to Prosecute, signed by Magistrate Judge Gerald B. Cohn on 11/18/11. Referred to Judge O'Neill; Objections due withing 15 days. (Verduzco, M)
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(PC)Martinez v. Drew et al Doc. 6 1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 DAVID MARTINEZ, CASE NO. 1:11-cv-01377-LJO-GBC PC 4 Plaintiff, 5 v. 6 STEPHEN DREW, et al., 7 Defendants. FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION, WITHOUT PREJUDICE, FOR FAILURE TO EITHER PAY FILING FEE OR FILE APPLICATION TO PROCEED IN FORMA PAUPERIS AND FOR FAILURE TO PROSECUTE 8 / OBJECTIONS DUE WITHIN FIFTEEN DAYS 9 10 On August 16, 2011, Plaintiff filed a pro se complaint pursuant to 42 U.S.C. § 1983. On 11 August 19, 2011, the Court mailed “prisoner new case documents” to Plaintiff. On August 22, 2011, 12 the Court ordered Plaintiff to pay the $350.00 filing fee in full or file an application to proceed in 13 forma pauperis within forty-five days. On August 29, 2011, the United States Postal Service returned 14 the mail as undeliverable. The Court issued an order to submit a change of address within sixty days. 15 On October 14, 2011, the Court issued an order to show cause why this action should not be 16 dismissed for failure to obey a court order. Plaintiff has failed to update his address, pay the $350.00 17 filing fee in full or file an application to proceed in forma pauperis, or respond to the order to show 18 cause. 19 A civil action may not proceed absent the submission of either the filing fee or an application 20 to proceed in forma pauperis. 28 U.S.C. §§ 1914, 1915. Because Plaintiff has submitted neither and 21 has not responded to the Court’s order to do so, dismissal of this action is appropriate. In re 22 Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006); 23 Local Rule 110. 24 Pursuant to Local Rule 183(b), a party appearing in propria persona is required to keep the 25 Court apprised of his or her current address at all times. Local Rule 183(b) provides, in pertinent 26 part: 27 28 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. Dockets.Justia.com 1 In the instant case, more than sixty-three days have passed since Plaintiff’s mail was returned, and 2 he has not notified the Court of a current address. 3 “In determining whether to dismiss an action for lack of prosecution, the district court is 4 required to consider several factors: ‘(1) the public’s interest in expeditious resolution of litigation; 5 (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 6 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 7 sanctions.’” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (quoting Henderson v. Duncan, 779 8 F.2d 1421, 1423 (9th Cir. 1986)). These factors guide a court in deciding what to do, and are not 9 conditions that must be met in order for a court to take action. In re Phenylpropanolamine (PPA) 10 Products Liability Litigation, 460 F.3d at 1226. 11 In this instance, Local Rule 183(b) provides for the dismissal of an action based on returned 12 mail. Given the Court’s inability to communicate with Plaintiff, dismissal is warranted and there are 13 no other reasonable alternatives available. See Carey, 856 F.2d at 1441. 14 Accordingly, it is hereby RECOMMENDED that this action be DISMISSED, without 15 prejudice, based on Plaintiff’s failure to pay the filing fee or file an application to proceed in forma 16 pauperis and for failure to prosecute pursuant to Local Rule 183(b). 17 These Findings and Recommendations will be submitted to the United States District Judge 18 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fifteen (15) days 19 after being served with these Findings and Recommendations, Plaintiff may file written objections 20 with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 21 Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 22 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 24 IT IS SO ORDERED. 25 26 27 28 Dated: 0jh02o November 18, 2011 UNITED STATES MAGISTRATE JUDGE