Parker v. Curry

Filing 8

FINDINGS and RECOMMENDATIONS to Dismiss Case for Plaintiff's Failure to Prosecute signed by Magistrate Judge Gary S. Austin on 11/3/2009. Referred to Judge Anthony W. Ishii. Objections to F&R due by 12/7/2009. (Bradley, A)

1 2 3 4 5 6 7 8 9 10 11 FREDERICK L. PARKER, 12 13 vs. 14 JOE CURRY, 15 Defendants. Plaintiff, FINDINGS AND RECOMMENDATION TO DISMISS CASE FOR PLAINTIFF'S FAILURE TO PROSECUTE 1:09-cv-00897-YNP [GSA] (PC) IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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 July 7, 2009, the court issued a second Order re

21 Consent or Request for Reassignment and served the order on 22 plaintiff. On August 10, 2009, the order served on plaintiff was

23 returned by the U.S. 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,

1 2 3 4 5

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.

6 In the instant case, sixty days have passed since plaintiff's 7 mail was returned and he has not notified the court of a current 8 address. 9 In determining whether to dismiss an action for lack of

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

16 1986); Carey v. King, 856 F.2d 1439 (9th Cir. 1988).

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

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

26 fourth factor -- public policy favoring disposition of cases on 27 their merits -- is greatly outweighed by the factors in favor of 28 dismissal discussed herein. Finally, given the court's inability -2-

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

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

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

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

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

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

November 3, 2009

/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE