Villegas v. Schulteis et al

Filing 124

ORDER to SHOW CAUSE Why This Action Should Not Be Dismissed for Failure to Prosecute; Plaintiff Must Show Cause Within Fourteen Days, signed by Magistrate Judge Michael J. Seng on 5/15/12. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SANTOS A. VILLEGAS,

1:09-cv-0493-MJS (PC)

Plaintiff,

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ORDER TO SHOW CAUSE WHY THIS
ACTION SHOULD NOT BE DISMISSED
FOR FAILURE TO PROSECUTE

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v.
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PLAINTIFF MUST SHOW CAUSE
WITHIN FOURTEEN DAYS

L. L. SCHULTEIS, et al.,

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Defendants.
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/
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Plaintiff Santos A. Villegas (“Plaintiff”) is a former state prisoner proceeding pro se
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and in forma pauperis in this civil rights actions pursuant to 42 U.S.C. § 1983. The parties
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have consented to Magistrate Judge jurisdiction. (ECF Nos. 9 & 95.)
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Plaintiff initiated this action on February 25, 2009. (ECF No. 1.) Trial in this matter
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was scheduled to commence on May 29, 2012. (ECF No. 118.) However, Plaintiff has
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been paroled and not updated his address on file with the Court. (ECF No. 123.) Plaintiff
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also failed to appear at notice Trial Confirmation Hearing on May 14, 2012. (Id.) Due to
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the Court’s inability to contact Plaintiff, the trial date in this matter has been vacated. (Id.)
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Moreover, Plaintiff’s failure to update his address constitutes a failure to prosecute which
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prevents the Court from resolving this action in a timely manner.
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In determining whether to dismiss an action for lack of prosecution, the Court must

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consider several factors: (1) the public’s interest in expeditious resolution of litigation; (2)

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the Court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the

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

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drastic sanctions. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); Carey v.

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King, 856 F.2d 1439 (9th Cir. 1988). The Court finds that the public’s interest in

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expeditiously resolving this litigation and the Court’s interest in managing the docket weigh

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in favor of dismissal. The Court cannot hold this case in abeyance indefinitely based on

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Plaintiff’s failure to notify the court of his address and prosecute this matter. The third

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factor, risk of prejudice to the defendants, also weighs in favor of dismissal, since a

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presumption of injury arises from the occurrence of unreasonable delay in prosecuting an

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action.

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factor—public policy favoring disposition of cases on their merits—is greatly outweighed

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by the factors in favor of dismissal discussed herein. Finally, given the Court’s inability to

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communicate with Plaintiff based on Plaintiff’s failure to keep the Court apprised of his

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current address, no lesser sanction is feasible.

Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976).

The fourth

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Accordingly, Plaintiff is ORDERED to show cause not later than fourteen days after

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the date of entry of this Order why his case should not be dismissed for failure to

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prosecute. Failure to meet this deadline will result in dismissal of this action.

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IT IS SO ORDERED.

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Dated:

ci4d6

May 15, 2012

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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