Williams v. Lane

Filing 16

ORDER DISMISSING CASE for Failure to Prosecute and Failure to Pay Filing Fee; Clerk shall CLOSE the CASE signed by Magistrate Judge Michael J. Seng on 4/21/2011. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ERIC LAVELLE WILLIAMS,

CASE NO.

1:10-cv-2212-MJS (PC)

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Plaintiff,
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ORDER DISMISSING CASE FOR FAILURE
TO PROSECUTE AND FAILURE TO PAY
FILING FEE

v.
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A. LANE,
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CLERK SHALL CLOSE THE CASE
Defendant.

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/
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Plaintiff Eric Lavelle Williams (“Plaintiff”) is a state prisoner proceeding pro se and

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in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff

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consented to magistrate judge jurisdiction on January 18, 2011 and no other party has

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appeared. (ECF No. 14.)

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On February 7, 2011, a court order was returned by the United States Postal service

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as undeliverable. Pursuant to Local Rule 83-183(b), a party appearing in propria persona

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is required to keep the Court apprised of his or her current address at all times. Local Rule

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83-183(b) 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 (63) 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, more than sixty-three days have passed since Plaintiff’s mail was

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returned and Plaintiff 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 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).

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expeditiously resolving this litigation and the Court's interest in managing the docket weigh

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in favor of dismissal. The Court cannot hold this case in abeyance indefinitely based on

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Plaintiff's failure to notify the court of his address. The third factor, risk of prejudice to the

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defendants, also weighs in favor of dismissal, since a presumption of injury arises from the

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occurrence of unreasonable delay in prosecuting an action. Anderson v. Air West, 542

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F.2d 522, 524 (9th Cir. 1976). The fourth factor—public policy favoring disposition of cases

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on their merits—is greatly outweighed by the factors in favor of dismissal discussed herein.

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Finally, given the Court's inability to communicate with Plaintiff based on Plaintiff's failure

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to keep the Court apprised of his current address, no lesser sanction is feasible.

The Court finds that the public’s interest in

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Additionally, on January 7, 2011, the Court ordered Plaintiff to either submit an

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application to proceed in forma pauperis or pay the $350.00 filing fee by January 31, 2011.

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A civil action may not proceed absent the submission of either the filing fee or the grant of

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in forma pauperis status. 28 U.S.C. §§ 1914, 1915. Because Plaintiff has neither applied

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to proceed in forma pauperis nor paid the filing fee, dismissal of this action is appropriate.

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In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th

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Cir. 2006); Local Rule 11-110.

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Accordingly, this action is HEREBY DISMISSED without prejudice based on

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Plaintiff's failure to prosecute and failure to pay the filing fee. The Clerk shall close the

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case.

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IT IS SO ORDERED.

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Dated:
97k110

April 21, 2011

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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