Bennett v. Winett et al

Filing 10

FINDINGS and RECOMMENDATIONS, signed by Magistrate Judge Gary S. Austin on 9/22/2009, Recommending that this re 1 Action be Dimissed for Plaintiff's Failure to Prosecute. MAtter referred to Judge O'Neill. (Objections to F&R due by 10/26/2009) (Figueroa, O)

1 2 3 4 5 6 7 8 9 10 11 FREDERICK DOUGLAS BENNETT, SR., 12 Plaintiff, 13 vs. 14 WINETT, et al., 15 Defendants. 16 ________________________________/ 17 Plaintiff is a state prisoner proceeding pro se and in 18 forma pauperis with a civil rights action pursuant to 42 U.S.C. 19 section 1983. 20 On June 9, 2009, the court issued a Notice of Temporary 21 Assignment Order and served the order on plaintiff. 22 2009, the order served on plaintiff was returned by the U.S. 23 Postal Service as undeliverable. 24 Pursuant to Local Rule 83-183(b), a party appearing in 25 propria persona is required to keep the court apprised of his or 26 her current address at all times. 27 in pertinent part: 28 -1Local Rule 83-183(b) provides, On July 2, FINDINGS AND RECOMMENDATION TO DISMISS CASE FOR PLAINTIFF'S FAILURE TO PROSECUTE 1:08-cv-0575 LJO YNP [GSA] (PC) IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

1 ///// 2 3 4 5 6 7 In the instant case, sixty days have passed since plaintiff's 8 mail was returned and he has not notified the court of a current 9 address. 10 In determining whether to dismiss an action for lack of 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 (60) days thereafter of a current address, the Court may dismiss the action without prejudice for failure to prosecute.

11 prosecution, the court must consider several factors: (1) the 12 public's interest in expeditious resolution of litigation; (2) 13 the court's need to manage its docket; (3) the risk of prejudice 14 to the defendants; (4) the public policy favoring disposition of 15 cases on their merits; and (5) the availability of less drastic 16 sanctions. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. The court

17 1986); Carey v. King, 856 F.2d 1439 (9th Cir. 1988).

18 finds that the public's interest in expeditiously resolving this 19 litigation and the court's interest in managing the docket weigh 20 in favor of dismissal, as this case has been pending [amount of 21 time]. The court cannot hold this case in abeyance indefinitely

22 based on plaintiff's failure to notify the court of his address. 23 The third factor, risk of prejudice to defendants, also weighs in 24 favor of dismissal, since a presumption of injury arises from the 25 occurrence of unreasonable delay in prosecuting an action. 26 Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The

27 fourth factor -- public policy favoring disposition of cases on 28 their merits -- is greatly outweighed by the factors in favor of -2-

1 dismissal discussed herein.

Finally, given the court's inability

2 to communicate with plaintiff based on plaintiff's failure to 3 keep the court apprised of his current address, no lesser 4 sanction is feasible. 5 6 RECOMMENDATION Accordingly, the court HEREBY RECOMMENDS that this

7 action be dismissed for plaintiff's failure to prosecute. 8 These findings and recommendations are submitted to the

9 United States District Judge assigned to the case, pursuant to 10 the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty

11 days after being served with these findings and recommendations, 12 any party may file written objections with the court and serve a 13 copy on all parties. Such a document should be captioned

14 "Objections to Magistrate Judge's Findings and Recommendations." 15 Any reply to the objections shall be served and filed within ten 16 days after service of the objections. The parties are advised

17 that failure to file objections within the specified time may 18 waive the right to appeal the District Court's order. 19 v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 21 22 23 24 25 26 27 28 -3IT IS SO ORDERED. Dated: j14hj0 Martinez

September 22, 2009

/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE