(PC) Pierce v. Unknown, No. 1:2015cv00650 - Document 18 (E.D. Cal. 2015)

Court Description: FINDINGS and RECOMMENDATIONS recommending that Dismissal of this action, without prejudice, based on Plaintiff's failure to prosecute re 10 Amended Petition for Writ of Habeas Corpus filed by Seavon Pierce ; referred to Judge O'Neill, signed by Magistrate Judge Dennis L. Beck on 08/03/2015. Objections to F&R due by 8/17/2015 (Martin-Gill, S)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 SEAVON PIERCE, Plaintiff, 11 12 13 v. UNKNOWN, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION FOR FAILURE TO PROSECUTE TEN-DAY OBJECTION DEADLINE Defendants. 14 15 Case No. 1:15-cv-00650 LJO DLB PC _____________________________________/ 16 17 Plaintiff Seavon Pierce, a state prisoner proceeding pro se and in forma pauperis, filed this 18 civil rights action pursuant to 42 U.S.C. § 1983 on November 12, 2014. 19 On April 29, 2015, the Court issued an order granting in forma pauperis status. The order 20 was returned on May 18, 2015, as undeliverable. On July 1, 2015, the Court issued a second order 21 directing Plaintiff to file a consent or decline form. The order was returned as undeliverable on 22 July 17, 2015. 23 Plaintiff is required to keep the Court apprised of his current address at all times, and Local 24 Rule 183(b) provides, “If mail directed to a plaintiff in propria persona by the Clerk is returned by 25 the U.S. Postal Service, and if such plaintiff fails to notify the Court and opposing parties within 26 sixty-three (63) days thereafter of a current address, the Court may dismiss the action without 27 prejudice for failure to prosecute.” Federal Rule of Civil Procedure 41(b) also provides for 28 1 dismissal of an action for failure to prosecute.1 Plaintiff’s address change was due by July 27, 2015, but he failed to file one and he has not 2 3 otherwise been in contact with the Court. “In determining whether to dismiss an action for lack of 4 prosecution, the district court is required to consider several factors: (1) the public’s interest in 5 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 6 prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and 7 (5) the availability of less drastic sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) 8 (internal quotation marks and citation omitted); accord Omstead v. Dell, Inc., 594 F.3d 1081, 1084 9 (9th Cir. 2010); In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 10 1226 (9th Cir. 2006). These factors guide a court in deciding what to do, and are not conditions 11 that must be met in order for a court to take action. In re PPA, 460 F.3d at 1226 (citation omitted). 12 This case has been pending since 2014, and the expeditious resolution of litigation and the 13 Court’s need to manage its docket weigh in favor of dismissal. Id. at 1227. In addition, “public 14 policy favoring disposition of cases on their merits strongly counsels against dismissal,” but “this 15 factor lends little support to a party whose responsibility it is to move a case toward disposition on 16 the merits but whose conduct impedes progress in that direction.” Id. at 1228. Finally, given the Court’s inability to communicate with Plaintiff, there are no other 17 18 reasonable alternatives available to address Plaintiff’s failure to prosecute. In re PPA, 460 F.3d at 19 1228-29; Carey, 856 F.2d at 1441. 20 Accordingly, the Court HEREBY RECOMMENDS DISMISSAL of this action, without 21 prejudice, based on Plaintiff’s failure to prosecute. Fed. R. Civ. P. 41(b); Local Rule 183(b). 22 These Findings and Recommendations will be submitted to the United States District 23 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within ten 24 (10) days after being served with these Findings and Recommendations, Plaintiff may file written 25 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 26 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 27 28 1 Courts may dismiss actions sua sponte under Rule 41(b) based on the plaintiff’s failure to prosecute. Hells Canyon Preservation Council v. U. S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (citation omitted). 2 1 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 2 1153 (9th Cir. 1991). 3 4 5 6 IT IS SO ORDERED. Dated: /s/ Dennis August 3, 2015 L. Beck UNITED STATES MAGISTRATE JUDGE 7 8 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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