Guzman v. Marshall et al

Filing 60

ORDER DISMISSING CASE, without prejudice for failure to prosecute signed by District Judge Lawrence J. O'Neill on 4/15/2016. CASE CLOSED.(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAFAEL GUZMAN,

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Plaintiff,
v.

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JOHN MARSHALL, et al.,

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Defendants.

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Case No.: 1:12-cv-00828-LJO-SAB (PC)
ORDER DISMISSING ACTION, WITHOUT
PREJUDICE, FOR FAILURE TO PROSECUTE
[ECF No. 59]

Plaintiff Rafael Guzman is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
On January 12, 2016, the Findings and Recommendations issued December 17, 2015, were
returned to the Court with a notation “undeliverable, no longer at facility.”
Plaintiff is required to keep the Court apprised of his current address at all times (Local Rule

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182(f), and Local Rule 183(b) provides, “If mail directed to a plaintiff in propria persona by the Clerk

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is returned by the U.S. Postal Service, and if such plaintiff fails to notify the Court and opposing

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parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the action

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without prejudice for failure to prosecute.”

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Plaintiff’s address change was due by March 21, 2016, but he failed to file one and he has not

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otherwise been in contact with the Court. In fact, on March 4, 2016, the Court’s February 18, 2016,

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order regarding consent to magistrate judge jurisdiction was returned as “undeliverable.”
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On March 2, 2016, Defendants filed a notice and submit that defense counsel “performed a

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search of Plaintiff’s location through the Federal Bureau of Prisons and discovered Plaintiff was

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released from prison on November 10, 2015. (ECF No. 58-1, Declaration of Andrea Sloan ¶ 4 (Sloan

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Decl.).) Counsel then contacted Plaintiff’s last known institution, LaSalle Detention Facility in Jena,

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LA and inquired as to how to get in contact with Plaintiff. (Id. ¶ 5.) Counsel was referred to the

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Immigration and Customs Enforcement (ICE) location in Louisiana, as Plaintiff was not legally in the

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United States. (Id. ¶ 6.) On February 12, 2016, counsel “spoke with ICE Enforcement and Removal

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Assistant, Cynthia.” (Id. ¶ 7.) Counsel was informed that ICE records indicate Plaintiff was deported

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to his country of origin on December 11, 2015. (Id.) Defendants request dismissal of the action for

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failure to prosecute.
On March 22, 2016, the Court directed Plaintiff to show cause within twenty days why the

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action should not be dismissed for failure to prosecute. (ECF No. 59.) The twenty day time frame has

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expired and Plaintiff has failed to respond to the Court’s order. Accordingly, dismissal of the action

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is warranted.

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“In determining whether to dismiss an action for lack of prosecution, the district court is

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required to 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 public policy

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

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v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (internal quotation marks and citation omitted); accord

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Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010); In re Phenylpropanolamine (PPA)

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Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006). These factors guide a court in

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deciding what to do, and are not conditions that must be met in order for a court to take action. In re

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PPA, 460 F.3d at 1226 (citation omitted).

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The expeditious resolution of litigation and the Court’s need to manage its docket weigh in

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favor of dismissal. Id. at 1227. Further, an opposing party is necessarily prejudiced by the aging of a

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case left to idle indefinitely as a result of the Plaintiff’s disinterest in either moving forward or taking

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action to dismiss the case. Id.

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With respect to the fourth factor, “public policy favoring disposition of cases on their merits

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strongly counsels against dismissal,” but “this factor lends little support to a party whose responsibility

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it is to move a case toward disposition on the merits but whose conduct impedes progress in that

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direction.” Id. at 1228.

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Finally, given the Court’s and Defendants’ inability to communicate with Plaintiff, there are no

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other reasonable alternatives available to address Plaintiff’s failure to prosecute. In re PPA, 460 F.3d

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at 1228-29; Carey, 856 F.2d at 1441.

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Accordingly, the Court HEREBY DISMISSES this action, without prejudice, based on

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Plaintiff’s failure to prosecute by keeping the Court apprised of his current address. Fed. R. Civ. P.

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41(b); Local Rule 183(b).

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill

April 15, 2016

UNITED STATES DISTRICT JUDGE

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