Clinton Vales v. Chen et al

Filing 16

ORDER DISMISSING Plainitff's Complaint, signed by Magistrate Judge Michael J. Seng on 10/14/2011. CASE CLOSED (Strike). (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CLINTON VALES,
Plaintiff,

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1:09-cv-02164-MJS (PC)
ORDER DISMISSING PLAINTIFF’S
COMPLAINT

v.
(ECF No. 14)

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DR. CHEN, et al.,
CLERK SHALL CLOSE CASE

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Defendants.

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_______________________________/
Plaintiff Clinton Vales (“Plaintiff”) is a prisoner proceeding pro se in a civil rights

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action pursuant to 42 U.S.C. § 1983.

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Plaintiff has consented to jurisdiction by a

Magistrate Judge. (ECF No. 5.)

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Plaintiff initiated this action on December 14, 2009. (ECF No. 1.) On July 13,

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2011, the Court screened Plaintiff’s Complaint, and found that it failed to state a claim.

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(ECF No. 14.) The Court gave Plaintiff leave to amend, and Plaintiff was to file an

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amended complaint by August 15, 2011. (ECF No. 14.) This deadline has passed and

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Plaintiff has failed to file an amended complaint or otherwise respond.

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The Court’s July 13, 2011 Order was returned by the U.S. Postal Service as

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undeliverable to Plaintiff. Over 63 days have passed and Plaintiff has not provided the

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Court with a new address or otherwise responded.

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

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

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provides, in 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)

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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, over 63 days have passed since Plaintiff's mail was returned, and he
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has not notified the Court of a current address
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A court may dismiss an action, with prejudice, based on a party’s failure to
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prosecute an action, failure to obey a court order, or failure to comply with local rules.
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See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for
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noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.
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1992) (dismissal for failure to comply with an order requiring amendment of a complaint);
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Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with
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local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S.
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Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with a
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court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for
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lack of prosecution and failure to comply with local rules). Plaintiff’s failure to respond or
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otherwise proceed with this action constitutes a lack of prosecution.
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In determining whether to dismiss an action for lack of prosecution, a 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 cannot hold this case in abeyance
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indefinitely based on Plaintiff’s failure to notify the Court of his address. The third factor,
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risk of prejudice to defendants, also weighs in favor of dismissal, since a presumption of
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injury arises from the occurrence of unreasonable delay in prosecuting an action.
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Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public policy
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favoring disposition of cases on their merits -- is greatly outweighed by the factors in favor
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of dismissal discussed herein. Finally, given the Court’s inability to communicate with
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Plaintiff based on Plaintiff’s failure to keep the Court apprised of his current address, no
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lesser sanction is feasible.

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Accordingly, the Court hereby ORDERS that this action be dismissed with

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prejudice due to Plaintiff’s failure to state a claim (ECF No. 14) and for Plaintiff’s failure

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to prosecute this action. This dismissal is subject to the “three-strikes” provision set forth

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in 28 U.S.C. § 1915(g). Silva v. Vittorio, No. 08-15620, 2011 WL 4436248, at *4 (9th Cir.

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Sept. 26, 2011).

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IT IS SO ORDERED.
Dated:
ci4d6

October 14, 2011

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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