Rodriguez v. United States of America

Filing 16

ORDER DISMISSING ACTION, Without Prejudice, for Failure to Prosecute, signed by Magistrate Judge Sandra M. Snyder on 5/26/2011. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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HECTOR ROMERO RODRIGUEZ,

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Plaintiff,

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CASE NO. 1:10-cv-00848-SMS PC
ORDER DISMISSING ACTION, WITHOUT
PREJUDICE, FOR FAILURE TO PROSECUTE

v.
UNITED STATES OF AMERICA, et al.,

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Defendant.
/

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Plaintiff Hector Romero Rodriguez “Plaintiff” is a former federal prisoner proceeding pro

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se and in forma pauperis in this civil action pursuant to Bivens v. Six Unknown Named Agents of

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Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971), which provides a remedy for

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violation of civil rights by federal actors. Plaintiff filed this action on April 19, 2010. On March 1,

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2011, the Court issued an ordering directing service by the United States Marshal, and on March 14,

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2011, the order was returned by the United States Postal Service as undeliverable stating “Out of

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Custody - Released.” On March 23, 2011, an order reassigning this case to the undersigned was

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issued and on April 13, 2011, it was returned by the Untied States Post Office as undeliverable

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stating “Not at this facility.”

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

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Court apprised of his or her current address at all times. Local Rule 183(b) provides, in pertinent

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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) days thereafter
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of a current address, the Court may dismiss the action without
prejudice for failure to prosecute.

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In the instant case, more than sixty-three days have passed since Plaintiff’s mail was returned, and
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he has not notified the Court of a current address.
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“In determining whether to dismiss an action for lack of prosecution, the district court is
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required to consider several factors: ‘(1) the public’s interest in expeditious resolution of litigation;
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(2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public
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policy favoring disposition of cases on their merits; and (5) the availability of less drastic
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sanctions.’” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (quoting Henderson v. Duncan, 779
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F.2d 1421, 1423 (9th Cir. 1986)). These factors guide a court in deciding what to do, and are not
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conditions that must be met in order for a court to take action. In re Phenylpropanolamine (PPA)
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Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (citation omitted).
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In this instance, Local Rule 183(b) provides for the dismissal of an action based on returned
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mail. Given the Court’s inability to communicate with Plaintiff, dismissal is warranted and there
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are no other reasonable alternatives available. See Carey, 856 F.2d at 1441.
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Accordingly, this action is HEREBY DISMISSED, without prejudice, based on Plaintiff’s
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failure to prosecute.
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IT IS SO ORDERED.
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Dated:
icido3

May 26, 2011

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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