Cho v. Six Unknown Names Agents Or Mr. President Of The United States Barack Obama

Filing 5

ORDER DIRECTING That This Matter be Assigned to a District Judge; FINDINGS and RECOMMENDATIONS to Dismiss the Matter for Failing to Comply With the Court's Orders and Failing to Prosecution the Action, signed by Magistrate Judge Jennifer L. Thurston on 6/4/2012, referred to Judge Ishii. Objections to F&R Due Within Fourteen (14) Days. (Marrujo, C)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHU HYUN CHO,

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Case No. 1:12-cv-00338 JLT (PC)

Plaintiffs,

ORDER DIRECTING THAT THIS MATTER
BE ASSIGNED TO A DISTRICT JUDGE

v.
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SIX UNKNOWN NAMES AGENTS, et. al,

FINDINGS AND RECOMMENDATIONS TO
DISMISS THE MATTER FOR FAILING TO
COMPLY WITH THE COURT’S ORDERS
AND FAILING TO PROSECUTION THE
ACTION

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Defendants.
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On March 2, 2012, Plaintiff filed this action. (Doc. 1) However, on March 19, 2012, the

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Court ordered the complaint stricken because it was not signed and it set forth no intelligible

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claims for relief. (Doc. 3) The order granted Plaintiff 30 days to file a new complaint. Id., at 2.

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On March 26, 2012, the order was returned as undeliverable. The Clerk of the Court re-served the

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order and other documents to Plaintiff at an address on Big Spring, TX. Since this time, Plaintiff

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has neither filed a new complaint nor filed notice of change of address.
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 (60) days thereafter of a current address, the Court may
dismiss the action without prejudice for failure to prosecute.
Here, sixty days have passed since Plaintiff’s mail was returned and he has not notified the court

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of a current address. Moreover, more than thirty days has passed since Petitioner’s amended

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petition was due pursuant to the Court’s May 19, 2012 order.

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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) the

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court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy

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favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.

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Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439 (9th

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Cir. 1988). The court finds that the public’s interest in expeditiously resolving this litigation and

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the court’s interest in managing the docket weigh in favor of dismissal, as this case has been

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pending [amount of time]. The court cannot hold this case in abeyance indefinitely based on

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

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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 F.2d 522,

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524 (9th Cir. 1976). The fourth factor -- public policy favoring disposition of cases on their

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merits -- is greatly outweighed by the factors in favor of dismissal discussed herein. Finally,

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given the court’s inability to communicate with petitioner based on petitioner’s failure to keep the

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court apprised of his current address, no lesser sanction is feasible.

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ORDER
Based upon the foregoing, the Court DIRECTS the Clerk of the Court to assign this matter
to a District Judge.

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RECOMMENDATION

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Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed for

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petitioner's failure to prosecute.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 14 days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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"Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections
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shall be served and filed within ten days after service of the objections. The parties are advised

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that failure to file objections within the specified time may waive the right to appeal the District

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

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IT IS SO ORDERED.
Dated:

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June 4, 2012

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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DEAC_Signature-END:

9j7khijed

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