Villa v. Gonzalez et al
ORDER Vacating 33 Findings and Recommendations Regarding Defendants' Motion to Dismiss; FINDINGS and RECOMMENDATIONS Regarding Dismissal of Action without Prejudice for Failure to Prosecute, signed by Magistrate Judge Barbara A. McAuliffe on 03/02/15. Fourteen-Day Deadline. (Gonzalez, R)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
Case No. 1:11-cv-01080-LJO-BAM (PC)
ORDER VACATING FINDINGS AND
DEFENDANTS’ MOTION TO DISMISS
(ECF No. 29)
F. GONZALEZ, et al.,
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION
WITHOUT PREJUDICE FOR FAILURE TO
Plaintiff Robert Villa, a former state prisoner proceeding pro se and in forma pauperis,
20 filed this civil rights action pursuant to 42 U.S.C. § 1983 on June 30, 2011. Following screening,
21 this action proceeded against Defendants Garikaparthi, Vue, Joaquin, and Shiesha for deliberate
22 indifference to serious medical needs in violation of the Eighth Amendment.
On July 11, 2014, Defendants file a motion to dismiss this action with prejudice for
24 failure to prosecute, or to vacate and reset the Discovery and Scheduling Order. Plaintiff filed an
25 opposition on August 29, 2014.
On December 3, 2014, the Court issued Findings and Recommendations that Defendants’
27 motion to dismiss be granted in part and denied in part. Specifically, the Court recommended that
28 Defendants’ motion to dismiss this action with prejudice for failure to prosecute be denied and
1 Defendants’ alternative motion to vacate and reset the Discovery and Scheduling Order be
2 granted. The Findings and Recommendations served on Plaintiff were returned by the United
3 State Postal Service as undeliverable, “Not in Custody” on December 11, 2014.
Plaintiff is required to keep the Court apprised of his current address at all times. Local
6 Rule 183(b) provides:
Address Changes. 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 sixtythree (63) days thereafter of a current address, the Court may dismiss the action
without prejudice for failure to prosecute.
Federal Rule of Civil Procedure 41(b) also provides for dismissal of an action for failure to
According to the Court’s docket, Plaintiff’s address change was due no later than February
20, 2015. Plaintiff has failed to file a change of address and he has not otherwise been in contact
with the Court. “In determining whether to dismiss an action for lack of prosecution, the district
court is required to weigh several factors: (1) the public’s interest in expeditious resolution of
litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4)
the public policy favoring disposition of cases on their merits; and (5) the availability of less
drastic sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (internal quotation marks
and citation omitted); accord Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010); In re
Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006).
These factors guide a court in deciding what to do, and are not conditions that must be met in
order for a court to take action. In re PPA, 460 F.3d at 1226 (citation omitted).
This case has been pending since 2011, and the expeditious resolution of litigation and the
Court’s need to manage its docket weigh in favor of dismissal. Id. at 1227. More importantly,
given the Court’s inability to communicate with Plaintiff, there are no other reasonable
Courts may dismiss actions sua sponte under Rule 41(b) based on the plaintiff’s failure to prosecute. Hells Canyon
Preservation Council v. U. S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (citation omitted).
1 alternatives available to address Plaintiff’s failure to prosecute this action and his failure to apprise
2 the Court of his current address. In re PPA, 460 F.3d at 1228-29; Carey, 856 F.2d at 1441. The
3 Court will therefore recommend that this action be dismissed based on Plaintiff’s failure to
4 prosecute this action.
Additionally, the pending Findings and Recommendations regarding
5 Defendants’ motion to dismiss will be vacated.
For the reasons stated, it is HEREBY ORDERED that the Findings and Recommendations
Conclusion, Order and Recommendation
8 issued on December 3, 2014, regarding Defendants’ motion to dismiss are VACATED. Further, it
9 is HEREBY RECOMMENDED that this action be dismissed, without prejudice, based on
10 Plaintiff’s failure to prosecute. Fed. R. Civ. P. 41(b); Local Rule 183(b).
These Findings and Recommendations will be submitted to the United States District
12 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within
13 fourteen (14) days after being served with these Findings and Recommendations, the parties may
14 file written objections with the Court.
The document should be captioned “Objections to
15 Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file
16 objections within the specified time may result in the waiver of the “right to challenge the
17 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014)
18 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
IT IS SO ORDERED.
March 2, 2015
UNITED STATES MAGISTRATE JUDGE
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