Felton v. Lopez, et al.

Filing 75

ORDER DISMISSING ACTION for Plaintiff's Failure to Prosecute signed by District Judge Anthony W. Ishii on 09/29/2015. CASE CLOSED.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEVIN FELTON,
Plaintiff,

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vs.

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1:12-cv-01066-AWI-BAM-PC
ORDER DISMISSING ACTION FOR
PLAINTIFF’S FAILURE TO PROSECUTE

J. LOPEZ, et al.,
Defendants.

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I.

BACKGROUND

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Kevin Felton is a former state prisoner proceeding pro se in this civil rights action

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pursuant to 42 U.S.C. ' 1983. This case now proceeds on the First Amended Complaint, filed

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on April 19, 2013, against defendants Correctional Officer (C/O) Lopez and C/O Harrison.

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II.

FINDINGS

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On April 10, 2015, the Court issued an order denying Plaintiff’s request for application

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of non-prisoner rules in a civil case requiring Defendants to respond to Plaintiff’s request for a

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settlement conference. (ECF No. 73.) The order was served upon Plaintiff at his last known

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address at 299 17th Street in San Diego, California. (Id., notice of electronic filing.) On April

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13, 2015, the United States Postal Service returned the Order as undeliverable. Plaintiff has not

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notified the court of any change in his address. Absent such notice, service at a party’s prior

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address is fully effective. Local Rule 182(f). Pursuant to Local Rule 183(b), a party appearing

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in propria persona is required to keep the court apprised of his or her current address at all

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times. Local Rule 183(b) provides:

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“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 sixty-three (63) days thereafter
of a current address, the Court may dismiss the action without
prejudice for failure to prosecute.”

In this case, more than sixty-three days have passed since Plaintiff’s mail was returned

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and he 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) the

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

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

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alternatives. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); Omstead v. Dell, 594

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F.3d 1081, 1084 (9th Cir. 2010). The court finds that the public’s interest in expeditiously

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resolving this litigation and the court’s interest in managing the docket weigh in favor of

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dismissal, as this case has been pending since January 11, 2011. The court cannot hold this

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case in abeyance indefinitely based on Plaintiff’s failure to notify the court of his address. The

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third factor, risk of prejudice to respondents, also weighs in favor of dismissal, since a

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presumption of injury arises from the occurrence of unreasonable delay in prosecuting an

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action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976); In re Phenylpropanolamine

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(PPA) Products Liability Litigation, 460 F.3d 1217, 1228-29 (9th Cir. 2006). The fourth factor,

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public policy favoring disposition of cases on their merits, is greatly outweighed by the factors

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in favor of dismissal discussed herein. Finally, given the court’s inability to communicate with

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

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sanction is feasible.

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III.

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ORDER
Based on the foregoing, the court HEREBY ORDERS that this action is DISMISSED

without prejudice, based on Plaintiff’s failure to prosecute.

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IT IS SO ORDERED.
Dated: September 29, 2015
SENIOR DISTRICT JUDGE

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