Johnson v. Pleasant Valley State Prison et al

Filing 25

FINDINGS And RECOMMENDATIONS Regarding Dismissal Of Action For Failure To Prosecute (ECF No. 24 ), Twenty-One Day Deadline, signed by Magistrate Judge Barbara A. McAuliffe on 2/3/2014. F&R's referred to Judge Lawrence J. O'Neill;Objections to F&R due by 2/26/2014. (Fahrney, E)

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EASTERN DISTRICT OF CALIFORNIA

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LEONARD JOHNSON,

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Plaintiff,

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v.

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MATTHEW CATES, et al.,

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Defendants.

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1:11-cv-00191-LJO- BAM (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION
FOR FAILURE TO PROSECUTE
(ECF No. 24)
TWENTY-ONE DAY DEADLINE

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Plaintiff Leonard Johnson (“Plaintiff”) is a state prisoner proceeding pro se in this civil

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rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on February 3, 2011.

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Following remand from the Ninth Circuit Court of Appeals, this Court issued an order directing

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Plaintiff to submit service documents and USM-285 forms. (ECF No. 24.) On September 9,

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2013, the order was returned as undeliverable, return to sender, paroled.

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

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

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follows:

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A party appearing in propria persona shall keep the Court and opposing parties
advised as to his or her current address. 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.
Local Rule 183(b).

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In the instant case, more than sixty-three days have passed since Plaintiff’s mail was
returned by the U.S. Postal Service, and he has not notified the Court of a current address.
“In determining whether to dismiss an action for lack of prosecution, the district court is

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required to weigh 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

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public 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,

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779 F.2d 1421, 1423 (9th Cir. 1986)). These factors guide a court in deciding what to do, and

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are not conditions that must be met in order for a court to take action. In re

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Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006)

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(citation omitted).

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In this instance, Local Rule 183(b) provides for the dismissal of an action based on

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returned mail. Given the Court’s inability to communicate with Plaintiff, dismissal is warranted

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and there are no other reasonable alternatives available. See Carey, 856 F.2d at 1441.

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Accordingly, IT IS HEREBY RECOMMENDED that this action be DISMISSED,
without prejudice, based on Plaintiff’s failure to prosecute.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within

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twenty-one (21) days after being served with these Findings and Recommendations, Plaintiff

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may file written objections with the court. The document should be captioned AObjections to

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Magistrate Judge’s Findings and Recommendations.@ Plaintiff is advised that failure to file

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objections within the specified time may waive the right to appeal the District Court’s order.

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

February 3, 2014

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A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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