Martinez v. James D. Hartley, et al

Filing 10

ORDER to SHOW CAUSE for failure to prosecute signed by Magistrate Judge Michael J. Seng on 7/3/2012. Show Cause Response due by 7/20/2012.(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MANUEL MARTINEZ

1:12-cv-0561-AWI-MJS (PC)

Plaintiff,

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ORDER TO SHOW CAUSE FOR
FAILURE TO PROSECUTE

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v.
PLAINTIFF MUST SHOW CAUSE BY
WITHIN FOURTEEN DAYS

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JAMES D. HARTLEY, et al.,

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Defendants.
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Plaintiff Manuel Martinez (“Plaintiff”) is a state prisoner proceeding pro se and in
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forma pauperis in this civil rights actions pursuant to 42 U.S.C. § 1983.
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Plaintiff initiated this action on February 21, 2012. (ECF No. 2.) On May 7, 2012,
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the Court’s April 27, 2012 Order granting Plaintiff’s motion to proceed in forma pauperis
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was returned by the U.S. Postal Service as undeliverable to Plaintiff. Over 63 days have
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passed and Plaintiff has not provided the Court with a new address or otherwise
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responded.
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Pursuant to Local Rule 183(b), a party appearing in propria persona is required to
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keep the Court apprised of his or her current address at all times. Local Rule 183(b)
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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

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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.

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In the instant case, over 63 days have passed since Plaintiff's mail was returned, and he

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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). The Court finds that the public’s interest in

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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

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

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

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of cases on their merits—is greatly outweighed by the factors in favor of dismissal

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discussed herein. Finally, given the Court’s inability to communicate with Plaintiff based

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on Plaintiff’s failure to keep the Court apprised of his current address, no lesser sanction

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is feasible.

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Accordingly, Plaintiff is ORDERED to show cause within fourteen days of entry of

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this Order why his case should not be dismissed for failure to prosecute. Failure to meet

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this deadline will result in dismissal of this action.

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IT IS SO ORDERED.

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Dated:

ci4d6

July 3, 2012

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
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