Vargas v. Sugrue

Filing 24

ORDER DISMISSING CASE Without Prejudice for Petioner's Failure to Prosecute; DIRECTING Clerk to close case because this order terminates the action in it's entirety, signed by Magistrate Judge Sheila K. Oberto on 7/12/2010. CASE CLOSED. (Marrujo, C)

(HC) Vargas v. Sugrue

Doc. 24

1 2 3 4 5 6 7 8 9 10 ROGELIO GALICIA VARGAS, 11 Petitioner, 12 13 14 15 16 17 Petitioner is a federal prisoner proceeding pro se with a 18 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. 19 Pursuant to the parties' consent, the matter has been referred to 20 the Magistrate Judge for all proceedings, including the entry of 21 final judgment, pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 22 73(b), and Local Rule 301.1 23 I. Petitioner's Failure to Inform the Court of His Address 24 On April 14, 2010, the Court issued an order reassigning the 25 present proceeding to the undersigned Magistrate Judge, and the 26 27 28
1 Respondent's counsel filed a signed consent form on May 24, 2010, and P e t i t i o n e r most recently filed a signed consent form on October 13, 2009.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

v. WARDEN J. E. SUGRUE, Respondent.

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1:09-cv--00842-SKO-HC ORDER DISMISSING THE ACTION WITHOUT PREJUDICE FOR PETITIONER'S FAILURE TO PROSECUTE ORDER DIRECTING THE CLERK TO CLOSE THE CASE

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Dockets.Justia.com

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order was served on Petitioner.

On April 26, 2010, the order

served on Petitioner was returned by the U.S. Postal Service as undeliverable and with a notation "not in custody." Pursuant to Local Rule 183(b), a party appearing in propria persona is required to keep the Court apprised of his or her current address at all times. pertinent part: 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. In the instant case, more than sixty-three days (63) have Local Rule 183(b) provides, in

13 passed since Petitioner's mail was returned, and he has not 14 notified the Court of a current address. 15 In determining whether to dismiss an action for lack of 16 prosecution, the Court must consider several factors: (1) the 17 public's interest in expeditious resolution of litigation; (2) 18 the Court's need to manage its docket; (3) the risk of prejudice 19 to the respondents; (4) the public policy favoring disposition of 20 cases on their merits; and (5) the availability of less drastic 21 alternatives. 22 1986); Carey v. King, 856 F.2d 1439 (9th Cir. 1988). 23 finds that the public's interest in expeditiously resolving this 24 litigation and the Court's interest in managing the docket weigh 25 in favor of dismissal because this case has been pending since 26 May 13, 2009. 27 indefinitely based on Petitioner's failure to notify the Court of 28 2 The Court cannot hold this case in abeyance The Court Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.

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his address.

The third factor, risk of prejudice to respondents,

also weighs in favor of dismissal, since a presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action. 1976). Anderson v. Air West, 542 F.2d 522, 524 (9th Cir.

The fourth factor, public policy favoring disposition of

cases on their merits, is greatly outweighed by the factors in favor of dismissal discussed herein. Finally, given the Court's

inability to communicate with Petitioner based on Petitioner's failure to keep the Court apprised of his current address, no lesser sanction is feasible. II. Disposition

Accordingly, the action is DISMISSED without prejudice for Petitioner's failure to prosecute. The Clerk is DIRECTED to close the case because this order terminates the action in is entirety.

IT IS SO ORDERED. Dated: ie14hj July 12, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE

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