Haney v. Saldana, et al

Filing 102

ORDER for Plaintiff to File Statement of Status; Thirty (30) Day Deadline signed by Magistrate Judge Sandra M. Snyder on 10/30/2012. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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BRUCE PATRICK HANEY,

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CASE NO. 1:04-cv-05935-AWI-SMS PC

Plaintiff,

ORDER FOR PLAINTIFF TO FILE
STATEMENT OF STATUS

v.
SALDANA, et al.,
THIRTY(30) DAY DEADLINE

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Defendants.
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Plaintiff, Bruce Patrick Haney (hereinafter “Plaintiff”), a state prisoner proceeding pro se

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and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on July 6, 2004.

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On January 19, 2011, this Court issued Findings and Recommendations (“the F&R”)

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recommending, among other things, that the Motion for Summary Judgment filed by Defendants

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Nelson and Saldana be granted and that the case be closed. (Doc. 72.) The parties were given

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thirty (30) days from service of the F&R to file objections. (Id.) Plaintiff requested multiple

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extensions of time to file objections which were granted such that his objections were due July

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18, 2011. (Docs. 73, 74, 81, 82, 84, 85.) Plaintiff filed objections. (Doc. 86.) The F&R was

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adopted in full, Defendants were granted summary judgment, and a defense judgment was

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entered. (Docs. 87, 88.) Plaintiff filed an appeal which affirmed in part, vacated in part, and

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remanded the matter; resulting in the case being reopened. (Docs. 89, 90, 91, 97, 101.)

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Subsequent attempts to serve Plaintiff with the order assigning the case to the

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undersigned (Doc. 100) have been unsuccessful. Service on Plaintiff at CSP- Corcoran, P.O.

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Box 3461, Corcoran, CA 93212-3461 (as noted on Plaintiff’s filings through May 17, 2011 (see
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Doc. 75)) was returned as undeliverable “Discharged.” Service on Plaintiff was again attempted,

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this time on the address noted on Plaintiff’s filings beginning on July 5, 2011, CSP-Corcoran,

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P.O. Box 8800, Corcoran, CA 9321, but it was returned as undeliverable “Refused.”

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Pursuant to Local Rule 183(b), a party appearing in propria persona is required to keep

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the Court apprised of his or her current address at all times. Local Rule 183(b) provides, in

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pertinent part:

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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.

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In the instant case, more than sixty-three days have passed since Plaintiff’s mail was returned,

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and he has not notified the Court of a current address.

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“In determining whether to dismiss an action for lack of prosecution, the district court is

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required to consider several factors: ‘(1) the public’s interest in expeditious resolution of

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litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants;

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(4) the public policy favoring disposition of cases on their merits; and (5) the availability of less

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drastic sanctions.’” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (quoting Henderson v.

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Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). These factors guide a court in deciding what to

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do and are not conditions that must be met in order for a court to take action. In re

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Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006)

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(citation omitted).

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In this instance, Local Rule 183(b) provides for the dismissal of an action based on

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returned mail. Judicial notice is taken of the Notice of Change of Address which Plaintiff filed in

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Haney v. Epstein, et al., 1:10-cv-01506-LJO-SKO, Doc. 30. According to that document,

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Plaintiff’s most recent address is 13109 Mercer Street, Pacioma, CA 91331. Further, Plaintiff

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was represented on appeal and the same counsel may intend to represent Plaintiff in this action --

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though no substitution of representation has been filed. However, effort will be made to elicit a

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response from Plaintiff both at the Pacioma address and via appellate counsel. These are the last

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alternatives the Court has to attempt service on Plaintiff. If Plaintiff does not respond to this
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order, dismissal for Plaintiff’s failure to prosecute will be warranted based on the Court’s

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inability to communicate with Plaintiff. See Carey, 856 F.2d at 1441.

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Accordingly, it is HEREBY ORDERED that:

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1.

within thirty (30) days of the date of service of this order Plaintiff shall file

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a statement in this case advising whether Plaintiff intends to proceed in

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this action;

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2.

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if Plaintiff intends to proceed in this action, he shall advise whether he will
continue pro se or will be represented;

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3.

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if Plaintiff intends to proceed pro se, he must provide his current address
in his statement;

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4.

if Plaintiff’s counsel on the appeal in this action intends to represent

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Plaintiff in this case, a substitution of attorney must be filed within thirty

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(30) days of the date of service of this order;

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5.

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failure to comply with this order will result in the action being dismissed
for failure to prosecute; and

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6.

the Clerk’s Office is to serve a copy of this order on Plaintiff at the

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Pacioma address1 and on Plaintiff’s appellate counsel2 along with

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Plaintiff’s current address3 on record in this action.

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IT IS SO ORDERED.

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Dated:
icido3

October 30, 2012

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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Mr. Bruce Haney, 13109 Mercer Street, Pacioma, CA 91331.

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O’Melveny & Myers, LLP, 1999 Avenue of the Stars, Los Angeles, CA 90067.

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CSP-Corcoran, P.O. Box 8800, Corcoran, CA 93212-8309.

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