Washington v. Scribner, et al

Filing 75

FINDINGS and RECOMMENDATIONS, signed by Magistrate Judge William M. Wunderlich on 1/22/2009. Motion referred to Judge Lawrence J. O'Neill. Objections to F&R due by 2/24/2009. (Sondheim, M)

1 2 3 4 5 6 7 8 9 10 11 12 A. K. SCRIBNER, et al., 13 Defendants. 14 15 Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 16 U.S.C. § 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. 17 § 1915. 18 On October 31, 2008, the court re-served plaintiff findings and recommendations 19 regarding his request for injunctive relief. On November 17, 2008, the order served on plaintiff 20 was returned by the U.S. Postal Service as undeliverable. 21 Pursuant to Local Rule 83-183(b), a party appearing in propria persona is required 22 to keep the court apprised of his or her current address at all times. Local Rule 83-183(b) 23 provides, in pertinent part: 24 25 If mail directed to a plaintiff in propria persona by the Clerk is 26 1 vs. RODERICK WASHINGTON, Plaintiff, 1:03 CV 5287 LJO WMW PC FINDINGS AND RECOMMENDATION IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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returned by the U.S. Postal Service, and if such plaintiff fails to notify the Court and opposing parties within sixty (60) days thereafter of a current address, the Court may dismiss the action without prejudice for failure to prosecute. In the instant case, sixty days have passed since plaintiff's mail was returned and he has not

4 notified the court of a current address. 5 In determining whether to dismiss an action for lack of prosecution, the court 6 must consider several factors: (1) the public's interest in expeditious resolution of litigation; (2) 7 the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 8 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 9 sanctions. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 10 1439 (9th Cir. 1988). The court finds that the public's interest in expeditiously resolving this 11 litigation and the court's interest in managing the docket weigh in favor of dismissal. The court 12 cannot hold this case in abeyance indefinitely based on plaintiff's failure to notify the court of his 13 address. The third factor, risk of prejudice to defendants, also weighs in favor of dismissal, since 14 a presumption of injury arises from the occurrence of unreasonable delay in prosecuting an 15 action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public 16 policy favoring disposition of cases on their merits -- is greatly outweighed by the factors in favor 17 of dismissal discussed herein. Finally, given the court's inability to communicate with plaintiff 18 based on plaintiff's failure to keep the court apprised of his current address, no lesser sanction is 19 feasible. 20 Accordingly, the court HEREBY RECOMMENDS that this action be dismissed 21 for plaintiff's failure to prosecute. 22 These findings and recommendations are 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 24 thirty days after being served with these findings and recommendations, plaintiff may file written 25 objections with the court. Such a document should be captioned "Objections to Magistrate 26 2

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Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). IT IS SO ORDERED. Dated: January 22, 2009 mmkd34 /s/ William M. Wunderlich UNITED STATES MAGISTRATE JUDGE

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