(PC) Higgins v. California Correctional Health Care Services, No. 1:2016cv01297 - Document 15 (E.D. Cal. 2017)

Court Description: ORDER DISMISSING CASE, without prejudice, for Failure to Prosecute and for Violation of Local Rules; ORDER Regarding Pending Findings and Recommendations 14 ,signed by District Judge Anthony W. Ishii on 12/20/17. CASE CLOSED (Martin-Gill, S)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 JONATHAN ELLIOTT HIGGINS, 11 12 13 14 Plaintiff, v. CALIFORNIA CORRECTIONAL HEALTH CARE SERVICES, Defendant. 15 Case No. 1:16-cv-01297-AWI-SAB (PC) ORDER DISMISSING ACTION, WITHOUT PREJUDICE, FOR FAILURE TO PROSECUTE AND FOR VIOLATION OF LOCAL RULES ORDER REGARDING PENDING FINDINGS AND RECOMMENDATIONS (Doc. No. 14) 16 17 18 Plaintiff Jonathan Elliott Higgins is appearing pro se and in forma pauperis in this civil 19 rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate 20 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 I. Background 22 On September 13, 2017, the assigned Magistrate Judge issued findings and 23 recommendations recommending that this action be dismissed, without prejudice, for lack of 24 standing. (Doc. No. 14.) Those findings and recommendations were served by mail on Plaintiff 25 at his address of record. On September 26, 2017, the findings and recommendations were 26 returned by the United States Postal Service as undeliverable. As of the date of this order, 27 Plaintiff has not provided any updated mailing address to the Court, or otherwise communicated 28 with the Court regarding this litigation. 1 1 II. 2 Plaintiff is required to keep the Court apprised of his current address at all times. Local 3 Discussion Rule 183(b) provides: 7 Address Changes. A party appearing in propria persona shall keep the Court and opposing parties advised as to his or her current address. 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. 8 In this Court’s first informational order issued on September 2, 2016, Plaintiff was 4 5 6 9 expressly warned of this requirement, and that his case would be dismissed for failure to 10 prosecute if he did not timely update his address. (Doc. No. 3-1, at p. 5.) Federal Rule of Civil 11 Procedure 41(b) also provides for a court’s dismissal of an action sua sponte for a plaintiff’s 12 failure to prosecute. Hells Canyon Preservation Council v. U. S. Forest Serv., 403 F.3d 683, 689 13 (9th Cir. 2005) (citation omitted). 14 In this case, Plaintiff’s address change was due no later than November 28, 2017. 15 Nevertheless, Plaintiff has failed to file any change of address form, and has not been in contact 16 with the Court. 17 “In determining whether to dismiss an action for lack of prosecution, the district court is 18 required to weigh several factors: (1) the public’s interest in expeditious resolution of litigation; 19 (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 20 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 21 sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (internal quotation marks and 22 citation omitted); accord Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010); In re 23 Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006). These 24 factors guide a court in deciding what to do, and are not conditions that must be met in order for a 25 court to take action. In re PPA, 460 F.3d at 1226 (citation omitted). 26 Plaintiff’s failure to comply with this Court’s rules, the expeditious resolution of litigation 27 and the Court’s need to manage its docket weigh in favor of dismissal. Id. at 1227. More 28 importantly, given the Court’s apparent inability to communicate with Plaintiff, there are no other 2 1 reasonable alternatives available to address Plaintiff’s failure to prosecute this action and his 2 failure to apprise the Court of his current address. In re PPA, 460 F.3d at 1228-29; Carey, 856 3 F.2d at 1441. Therefore, the Court will dismiss this action, without prejudice, based on Plaintiff’s 4 failure to prosecute this action and violation of the local rules. 5 III. 6 For the foregoing reasons, the Court HEREBY ORDERS as follows: 7 1. This action is dismissed, without prejudice, based on Plaintiff’s failure to prosecute. 8 9 10 11 Conclusion and Order Fed. R. Civ. P. 41(b) and for Plaintiff’s violation Local Rule 183(b); 2. The pending findings and recommendations (Doc. No. 14) are not adopted at this time; and 3. The Clerk of Court shall CLOSE this case. 12 13 14 IT IS SO ORDERED. Dated: December 20, 2017 SENIOR DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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