(PC)Martin v. Bonilla et al, No. 1:2022cv00810 - Document 11 (E.D. Cal. 2023)

Court Description: FINDINGS and RECOMMENDATIONS that this Case be Dismissed, without Prejudice for Plaintiff's Failure to Prosecute signed by Magistrate Judge Gary S. Austin on 06/29/2023. Referred to Judge Thurston; Objections to F&R due by 7/20/2023.(Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JARED ANDREW MARTIN, 12 Plaintiff, 13 14 vs. BONILLA, et al., 15 Defendants. 16 1:22-cv-00810-JLT-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE DISMISSED, WITHOUT PREJUDICE, FOR PLAINTIFF’S FAILURE TO PROSECUTE OBJECTIONS, IF ANY, DUE ON OR BEFORE JULY 20, 2023 17 18 19 I. BACKGROUND 20 Jared Andrew Martin (“Plaintiff”) is a Madera County Jail inmate proceeding pro se and 21 in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the 22 Complaint commencing this action on July 1, 2022. (ECF No. 1.) The Complaint awaits the 23 court’s requisite screening under 28 U.S.C. § 1915. 24 II. FINDINGS 25 On April 11, 2023, the court issued an order (“Order”) reassigning this case from United 26 States District Judge Anthony W. Ishii to United States District Judge Jennifer L. Thurston. (ECF 27 No. 10.) The Order was served upon Plaintiff at his last known address at the Madera County 28 Jail, 195 Tozer St., Madera, California 93638. (Id., notice of conventional service.) On April 1 17, 2023, the United States Postal Service returned the Order as undeliverable. (Court Docket.) 2 A notation on the envelope indicated that the mail was “Returned as Undeliverable, Not in 3 Custody.” (Id.) 4 Plaintiff has not notified the court of any change in his address. Absent such notice 5 service at a party’s prior address is fully effective. Local Rule 182(f). Pursuant to Local Rule 6 183(b), a party appearing in propria persona is required to keep the court apprised of his or her 7 current address at all times. Local Rule 183(b) provides: 8 9 10 11 12 13 “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.” In this case, more than sixty-three days have passed since Plaintiff’s mail was returned to the court and Plaintiff has not notified the court of a current address. 14 In determining whether to dismiss an action for lack of prosecution, the court must 15 consider several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the 16 court’s need to manage its docket; (3) the risk of prejudice to the respondents; (4) the public 17 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 18 alternatives. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); Omstead v. Dell, 594 19 F.3d 1081, 1084 (9th Cir. 2010). The court finds that the public’s interest in expeditiously 20 resolving this litigation and the court’s interest in managing the docket weigh in favor of 21 dismissal, as this case has been pending since July 1, 2022. The court cannot hold this case in 22 abeyance indefinitely based on Plaintiff’s failure to notify the court of his address. The third 23 factor, risk of prejudice to respondents, also weighs in favor of dismissal, since a presumption of 24 injury arises from the occurrence of unreasonable delay in prosecuting an action. Anderson v. 25 Air West, 542 F.2d 522, 524 (9th Cir. 1976); In re Phenylpropanolamine (PPA) Products Liability 26 Litigation, 460 F.3d 1217, 1228-29 (9th Cir. 2006). The fourth factor, public policy favoring 27 disposition of cases on their merits, is greatly outweighed by the factors in favor of dismissal 28 discussed herein. Finally, given the court’s inability to communicate with Plaintiff based on 1 Plaintiff’s failure to keep the court apprised of his current address, no lesser sanction than 2 dismissal of the case is feasible. However, inasmuch as the dismissal being considered in this 3 case is without prejudice, the court is stopping short of issuing the harshest possible sanction of 4 dismissal with prejudice. 5 Based on this analysis, the court finds that this case should be dismissed, without 6 prejudice, for Plaintiff’s failure to prosecute. 7 III. RECOMMENDATIONS 8 Based on the foregoing, the court HEREBY RECOMMENDS that: 9 1. 10 This case be DISMISSED without prejudice, based on Plaintiff’s failure to prosecute; and 11 2. 12 These findings and recommendations are submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). On or before 14 July 20, 2023, Plaintiff may file written objections with the court. Such a document should be 15 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is 16 advised that failure to file objections within the specified time may waive the right to appeal the 17 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). The Clerk of Court be directed to close this case. 18 19 20 21 22 23 24 25 26 27 28 IT IS SO ORDERED. Dated: June 29, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

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