Lamb v. Rawers et al
Filing
6
FINDINGS and RECOMMENDATIONS recommending that in the event that Plaintiff does not apprise the Court of his current address within Thirty (30) Days of entry of this order, this matter be DISMISSED by the District Judge; re 1 Prisoner Civil Rights Complaint filed by William Lamb ; referred to Judge O'Neill, signed by Magistrate Judge Michael J. Seng on 07/27/2011. Objections to F&R and update of current address due by 8/30/2011 (Martin-Gill, S)
1
2
3
4
UNITED STATES DISTRICT COURT
5
EASTERN DISTRICT OF CALIFORNIA
6
7
WILLIAM LAMB,
Plaintiff,
8
9
10
11
1:11-cv-00400-MJS (PC)
v.
SCOTT RAWERS, et al.,
Defendants.
FINDINGS AND RECOMMENDATION
FOR DISMISSAL OF PLAINTIFF’S
COMPLAINT
(ECF No. 3)
THIRTY DAY DEADLINE
12
13
_______________________________/
14
Plaintiff William Lamb (“Plaintiff”) is a prisoner proceeding pro se in a civil rights
15
action pursuant to 42 U.S.C. § 1983. He has not consented to Magistrate Judge
16
jurisdiction. The case has not yet been assigned to a District Judge.
17
On March 10, 2011, the Court severed Plaintiff’s claims from those of his co-
18
plaintiffs and opened the above-captioned civil case with Lamb as the sole Plaintiff.
19
(Order, ECF No. 2.) On March 11, 2011, the Court issued an Order to Plaintiff to either
20
consent or decline to jurisdiction by a Magistrate a Judge by April 14, 2011. (Order, ECF
21
No. 3.) This deadline has long since passed without a response from Plaintiff.
22
On April 11, 2011, the Court’s April 14 Order was returned by the U.S. Postal
23
Service as undeliverable to Plaintiff. Over 63 days have passed and Plaintiff has not
24
provided the Court with a new address or otherwise responded.
25
Pursuant to Local Rule 183(b), a party appearing in propria persona is required to
26
keep the Court apprised of his or her current address at all times. Local Rule 183(b)
27
provides, in pertinent part:
28
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)
1
days thereafter of a current address, the Court may dismiss
the action without prejudice for failure to prosecute.
2
In the instant case, over 63 days have passed since Plaintiff's mail was returned, and he
3
has not notified the Court of a current address
4
A court may dismiss an action, with prejudice, based on a party’s failure to
5
prosecute an action, failure to obey a court order, or failure to comply with local rules.
6
See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for
7
noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.
8
1992) (dismissal for failure to comply with an order requiring amendment of a complaint);
9
Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with
10
local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S.
11
Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with a
12
court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for
13
lack of prosecution and failure to comply with local rules). Plaintiff’s failure to respond or
14
otherwise proceed with this action constitutes a lack of prosecution.
15
In determining whether to dismiss an action for lack of prosecution, a court must
16
consider several factors: (1) the public’s interest in expeditious resolution of litigation; (2)
17
the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the
18
public policy favoring disposition of cases on their merits; and (5) the availability of less
19
drastic sanctions. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); Carey v.
20
King, 856 F.2d 1439 (9th Cir. 1988). The Court finds that the public’s interest in
21
expeditiously resolving this litigation and the Court’s interest in managing its docket weigh
22
in favor of dismissal, as this case has been pending for over five years, since the original
23
Complaint was filed in 2006. (Compl., ECF No. 1.) The Court cannot hold this case in
24
abeyance indefinitely based on Plaintiff’s failure to notify the Court of his address. The
25
third factor, risk of prejudice to defendants, also weighs in favor of dismissal, since a
26
presumption of injury arises from the occurrence of unreasonable delay in prosecuting
27
an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -28
-2-
1
public policy favoring disposition of cases on their merits -- is greatly outweighed by the
2
factors in favor of dismissal discussed herein. Finally, given the Court’s inability to
3
communicate with Plaintiff based on Plaintiff’s failure to keep the Court apprised of his
4
current address, no lesser sanction is feasible. As such, the Court recommends that this
5
matter be dismissed should Plaintiff not provide a correct mailing address within 30 days
6
of service of this Order.
Plaintiff has not consented to Magistrate Judge jurisdiction, and the case has not
7
8
yet been assigned to a District Judge.
Accordingly,
9
1.
10
IT IS ORDERED that the Clerk’s Office of this Court assign this matter to
a District Judge at this time;
11
2.
12
IT IS ORDERED that Plaintiff inform the Court of his current address within
thirty (30) days of entry of this Order; and
13
3.
14
IT IS RECOMMENDED that in the event that Plaintiff does not apprise the
15
Court of his current address within thirty (30) days of entry of this Order,
16
this matter be DISMISSED by the District Judge.
17
Once this case has been assigned to a District Judge, these Findings and
18
Recommendations will be submitted to the assigned District Judge pursuant to the
19
provisions of Title 28 U.S.C. § 636(b)(1). Within thirty days after being served with these
20
findings and recommendations, any party may file written objections with the Court and
21
serve a copy on all parties. Such a document should be captioned “Objections to
22
Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall
23
be served and filed within ten days after service of the objections. The parties are
24
advised that failure to file objections within the specified time may waive the right to
25
appeal the District Court’s order. Martinez v. Y1st, 951 F.2d 1153 (9th Cir. 1991).
26
IT IS SO ORDERED.
27
Dated:
ci4d6
July 27, 2011
Michael J. Seng
/s/
UNITED STATES MAGISTRATE JUDGE
28
-3-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?