(PC) Burns v. County of Shasta et al, No. 2:2018cv03157 - Document 5 (E.D. Cal. 2019)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 3/26/2019 RECOMMENDING that this action be dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and orders. Referred to Judge William B. Shubb. Objections due within 14 days after being served with these F & R's.(Reader, L)
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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DWAYNE B. BURNS, 12 13 No. 2:18-CV-3157-WBS-DMC-P Plaintiff, v. FINDINGS AND RECOMMENDATIONS 14 COUNTY OF SHASTA, et al., 15 Defendants. 16 17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 18 42 U.S.C. § 1983. On December 21, 2018, mail served on plaintiff at his address of record was 19 returned undeliverable at that address. Pursuant to Eastern District of California Local Rule 20 183(b), all parties appearing pro se are required to notify the court of any change of address 21 within 63 days. More than 63 days have elapsed and plaintiff has failed to comply. 22 The court must weigh five factors before imposing the harsh sanction of dismissal. 23 See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. U.S. Postal 24 Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's interest in 25 expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) the risk of 26 prejudice to opposing parties; (4) the public policy favoring disposition of cases on their merits; 27 and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 46 F.3d 52, 28 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an appropriate 1 1 sanction is considered a less drastic alternative sufficient to satisfy the last factor. See Malone, 2 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is appropriate where 3 there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 4 1986). Dismissal has also been held to be an appropriate sanction for failure to comply with an 5 order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 6 1992). 7 8 9 10 Having considered these factors, and in light of plaintiff’s failure to notify the court of his change of address, the court finds that dismissal of this action is appropriate. Based on the foregoing, the undersigned recommends that this action be dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and orders. 11 These findings and recommendations are submitted to the United States District 12 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 13 after being served with these findings and recommendations, any party may file written 14 objections with the court. Responses to objections shall be filed within 14 days after service of 15 objections. Failure to file objections within the specified time may waive the right to appeal. See 16 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 18 19 Dated: March 26, 2019 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 2
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