Priest v. Mimms, et al.

Filing 8

ORDER DISMISSING CASE signed by Magistrate Judge Barbara A. McAuliffe on 8/20/2014. CASE CLOSED.(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HOLLIS EDWARD PRIEST, III,
Plaintiff,

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Case No. 1:13-cv-01027-BAM (PC)
ORDER DISMISSING ACTION WITHOUT
PREJUDICE FOR FAILURE TO
PROSECUTE

v.

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MARGARET MIMMS, et al.,

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Defendants.
_____________________________________/

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Plaintiff Hollis Edward Priest, III, a jail inmate proceeding pro se and in forma pauperis,

17 filed this civil rights action pursuant to 42 U.S.C. § 1983 on July 3, 2013. Plaintiff consented to
18 the jurisdiction of the United States Magistrate Judge. (ECF No. 6.)
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On June 4, 2014, the Court dismissed Plaintiff’s complaint with leave to amend within

20 thirty days. (ECF No. 7.)

The order was returned by the United States Postal Service as

21 Undeliverable, “RTS, Not In Custody” on June 11, 2014.
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Plaintiff is required to keep the Court apprised of his current address at all times. Local

23 Rule 183(b) provides:
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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-three (63) days thereafter of a current address, the Court may
dismiss the action without prejudice for failure to prosecute.

27 Federal Rule of Civil Procedure 41(b) also provides for dismissal of an action for failure to
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1 prosecute.1
Plaintiff’s address change was due no later than August 18, 2014, but he has failed to file

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3 one and he has not otherwise been in contact with the Court. “In determining whether to dismiss
4 an action for lack of prosecution, the district court is required to weigh several factors: (1) the
5 public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket;
6 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on
7 their merits; and (5) the availability of less drastic sanctions.” Carey v. King, 856 F.2d 1439, 1440
8 (9th Cir. 1988) (internal quotation marks and citation omitted); accord Omstead v. Dell, Inc., 594
9 F.3d 1081, 1084 (9th Cir. 2010); In re Phenylpropanolamine (PPA) Products Liability Litigation,
10 460 F.3d 1217, 1226 (9th Cir. 2006). These factors guide a court in deciding what to do, and are
11 not conditions that must be met in order for a court to take action. In re PPA, 460 F.3d at 1226
12 (citation omitted).
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This case has been pending since July 2013, and the expeditious resolution of litigation and

14 the Court’s need to manage its docket weigh in favor of dismissal. Id. at 1227. More importantly,
15 given the Court’s inability to communicate with Plaintiff, there are no other reasonable
16 alternatives available to address Plaintiff’s failure to prosecute this action. In re PPA, 460 F.3d at
17 1228-29; Carey, 856 F.2d at 1441.
Accordingly, this action is HEREBY DISMISSED, without prejudice, based on Plaintiff’s

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19 failure to prosecute. Fed. R. Civ. P. 41(b); Local Rule 183(b). This terminates the action in its
20 entirety.
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IT IS SO ORDERED.

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Dated:

/s/ Barbara

August 20, 2014

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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Courts may dismiss actions sua sponte under Rule 41(b) based on the plaintiff’s failure to prosecute. Hells Canyon
Preservation Council v. U. S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (citation omitted).

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