Barger v. Brown et al

Filing 6

FINDINGS and RECOMMENDATIONS Regarding Dismissal of Action for Failure to Prosecute, referred to Judge O'Neill, signed by Magistrate Judge Dennis L. Beck on 7/24/2013. Objections to F&R Due Within Fourteen Days. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GARY DALE BARGER,

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Case No. 1:13-cv-00452 LJO DLB PC

Plaintiff,
FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF ACTION FOR
FAILURE TO PROSECUTE

v.
JERRY BROWN, et al.,

FOURTEEN DAY DEADLINE
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Defendants.

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Plaintiff Gary Dale Barger (“Plaintiff”) is a California state prisoner proceeding pro se and in

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forma pauperis in this civil action pursuant to 42 U.S.C. § 1983. Plaintiff filed his complaint on

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March 28, 2013.

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On March 29, 2013, the Court mailed Plaintiff documents relating to his case. However, the

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mail was returned by the United States Postal Service with a notation, “Undeliverable, Name and

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Prison ID Number Do Not Match.”

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On May 13, 2013, the Court again mailed Plaintiff documents related to his case. On June 6,

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2013, the mail was returned by the United States Postal Service with a notation, “Undeliverable,

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Name and CDC# Do Not Match.”

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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;

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(2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (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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sanctions.’” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (quoting Henderson v. Duncan, 779

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F.2d 1421, 1423 (9th Cir. 1986)). These factors guide a court in deciding what to do, and are not

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conditions that must be met in order for a court to take action. In re Phenylpropanolamine (PPA)

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Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (citation omitted).
In this instance, given the Court’s inability to communicate with Plaintiff, dismissal is

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warranted and there are no other reasonable alternatives available. The action has been pending

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since March 28, 2013, and all mail sent to Plaintiff has been returned. See Carey, 856 F.2d at 1441.

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Accordingly, the Court RECOMMENDS that this action be DISMISSED WITHOUT

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PREJUDICE for Plaintiff’s failure to prosecute. These Findings and Recommendations will be

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submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title

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28 U.S.C. § 636(b)(l). Within fourteen (14) days after being served with these Findings and

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Recommendations, the parties may file written objections with the Court. The document should be

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captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are

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

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

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IT IS SO ORDERED.

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Dated:

/s/ Dennis

July 24, 2013

L. Beck

UNITED STATES MAGISTRATE JUDGE

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DEAC_Signature-END:

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3b142a

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