(PC) Arena v. Cervantes et al, No. 1:2021cv00928 - Document 35 (E.D. Cal. 2022)

Court Description: FINDINGS and RECOMMENDATIONS Regarding Dismissal of Actions for Failure to Prosecute, signed by Magistrate Judge Barbara A. McAuliffe on 5/31/2022. Objections to F&R due within FOURTEEN DAYS. (Marrujo, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PETER MICHAEL ARENA, 12 Plaintiff, 13 14 v. CERVANTES, et al., 15 Case No. 1:21-cv-00928-JLT-BAM (PC) FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION FOR FAILURE TO PROSECUTE FOURTEEN (14) DAY DEADLINE Defendants. 16 17 I. Background 18 Plaintiff Peter Michael Arena (“Plaintiff”) is a state prisoner proceeding pro se and in 19 forma pauperis in this civil rights action under 42 U.S.C. § 1983. This action proceeds against 20 Defendants Cervantes, Berlanga, Cerda-Jirano, Moreno, and Ceja for excessive force in violation 21 of the Eighth Amendment. This matter was referred to a United States Magistrate Judge pursuant 22 to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On March 1, 2022, the undersigned issued an order granting Defendants’ request to opt 23 24 out of post-settlement ADR and a discovery and scheduling order. (ECF Nos. 32, 33.) On March 25 15, 2022, those orders were returned as “Undeliverable, Not Deliverable as Addressed.” Plaintiff 26 has not filed a notice of change of address or otherwise communicated with the Court. 27 /// 28 /// 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: 4 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 Federal Rule of Civil Procedure 41(b) also provides for dismissal of an action for failure to 9 prosecute.1 5 6 Plaintiff’s address change was due no later than May 17, 2022. Plaintiff has failed to file 10 11 a change of address and he has not otherwise been in contact with the Court. “In determining 12 whether to dismiss an action for lack of prosecution, the district court is required to weigh several 13 factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 14 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 15 disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Carey v. 16 King, 856 F.2d 1439, 1440 (9th Cir. 1988) (internal quotation marks and citation omitted); accord 17 Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010); In re Phenylpropanolamine (PPA) 18 Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006). These factors guide a court in 19 deciding what to do, and are not conditions that must be met in order for a court to take action. In 20 re PPA, 460 F.3d at 1226 (citation omitted). 21 Given Plaintiff’s failure to respond to this Court’s order, the expeditious resolution of 22 litigation and the Court’s need to manage its docket weigh in favor of dismissal. Id. at 1227. 23 More importantly, given the Court’s apparent inability to communicate with Plaintiff, there are no 24 other reasonable alternatives available to address Plaintiff’s failure to prosecute this action and his 25 failure to apprise the Court of his current address. Id. at 1228–29; Carey, 856 F.2d at 1441. The 26 Court will therefore recommend that this action be dismissed based on Plaintiff’s failure to 27 1 28 Courts may dismiss actions sua sponte under Rule 41(b) based on the plaintiff’s failure to prosecute. Hells Canyon Pres. Council v. U. S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (citation omitted). 2 1 prosecute this action. 2 III. Conclusion and Recommendation 3 Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed, without 4 prejudice, based on Plaintiff’s failure to prosecute. Fed. R. Civ. P. 41(b); Local Rule 183(b). 5 These Findings and Recommendations will be submitted to the United States District 6 Judge assigned to the case, under the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 7 days after being served with these Findings and Recommendations, Plaintiff may file written 8 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 9 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 10 specified time may result in the waiver of the “right to challenge the magistrate’s factual 11 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 12 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 13 14 15 16 IT IS SO ORDERED. Dated: /s/ Barbara May 31, 2022 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 3

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