Hughes v. Collins et al

Filing 13

FINDINGS and RECOMMENDATIONS recommending that 1 this Action be Dismissed without Prejudice for Plaintiff's Failure to Prosecute signed by Magistrate Judge Dennis L. Beck on 10/09/2010. Referred to Judge Ishii; Objections to F&R due by 11/15/2010. (Flores, E)

Hughes v. Collins et al

Doc. 13

1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 AARON TYLER HUGHES, 9 10 Plaintiff, 11 v. 12 GARY COLLINS, et al., 13 14 Defendants. 15 16 Plaintiff Aaron Tyler Hughes ("Plaintiff"), a California state prisoner proceeding pro se 17 and in forma pauperis, filed this civil rights action on January 19, 2010. 18 BACKGROUND 19 On July 23, 2010, the Court issued findings and a recommendation that this action be 20 dismissed, without prejudice, based on Plaintiff's failure to state a claim upon which relief may 21 be granted under 28 U.S.C. § 1983. The Court granted Plaintiff leave to file written objections 22 withing thirty days. The Order was returned by the United States Postal Service on August 2, 23 2010, as undeliverable, paroled. 24 Plaintiff has not provided a new address, filed any objections or otherwise contacted the 25 Court. 26 27 28 1
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UNITED STATES DISTRICT COURT
) 1:10cv00095 AWI DLB ) ) ) ) FINDINGS AND RECOMMENDATION ) REGARDING DISMISSAL OF ACTION ) ) ) ) ) ) ) )

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DISCUSSION Pursuant to Local Rule 183(b), a party appearing in propria persona is required to keep the Court advised of his or her current address at all times. Local Rule 183(b) provides, in 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, over 63 days have passed since Plaintiff's mail was returned and he

9 has not notified the Court of a current address. 10 In determining whether to dismiss an action for lack of prosecution, the Court must 11 consider several factors: (1) the public's interest in expeditious resolution of litigation; (2) the 12 court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 13 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 14 alternatives. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 15 F.2d 1439 (9th Cir. 1988). 16 The Court finds that the public's interest in expeditiously resolving this litigation and the 17 Court's interest in managing the docket weigh in favor of dismissal, as this case has been 18 pending since January 19, 2010. The Court cannot hold this case in abeyance indefinitely based 19 on Plaintiff's failure to notify the Court of his address. The third factor, risk of prejudice to 20 defendants, also weighs in favor of dismissal, since a presumption of injury arises from the 21 occurrence of unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 22 524 (9th Cir. 1976). The fourth factor -- public policy favoring disposition of cases on their 23 merits -- is greatly outweighed by the factors in favor of dismissal discussed herein. Finally, 24 given the Court's inability to communicate with Plaintiff based on his failure to keep the Court 25 advised of his current address, no lesser sanction is feasible. 26 27 28 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IT IS SO ORDERED. Dated: 3b142a

RECOMMENDATION Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed without prejudice for Plaintiff's failure to prosecute. This Findings and Recommendation is submitted to the United States District Court Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after being served with a copy, Plaintiff may file written objections with the Court. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." A response to the objections, if any, shall be filed within fourteen (14) days after service of the objections. The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

October 9, 2010

/s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE

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