Jimenez v. Fresno Superior Court, Dept. 20, et al.
Filing
23
ORDER DISMISSING ACTION For Failure to Prosecute and DIRECTING Clerk of COurt to Enter Judgment, signed by Magistrate Judge Stanley A. Boone on 7/11/2014. CASE CLOSED. (Marrujo, C)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
RICHARD JIMENEZ,
12
13
14
15
Plaintiff,
v.
FRESNO COUNTY SUPERIOR COURT,
et.al.
Defendant.
16
17
)
)
)
)
)
)
)
)
)
)
Case No.: 1:13-cv-01204-SAB (PC)
ORDER DISMISSING ACTION FOR
FAILURE TO PROSECUTE AND
DIRECTING CLERK OF COURT TO
ENTER JUDGMENT
(ECF No. 22)
Plaintiff Richard Jimenez (“Plaintiff”), a pretrial detainee proceeding pro se and in forma
18
pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on August 2, 2013. Pursuant to 28
19
U.S.C. § 636(c), Plaintiff consented to the jurisdiction of the United States Magistrate Judge on
20
September 24, 2013. Local Rule 302.
21
I.
22
BACKGROUND
23
On March 10, 2014, the Court issued an order directing the United States Marshal to serve the
24
complaint on Defendant Redfield. The Court’s order was returned as undeliverable on March 26,
25
2014. On May 9, 2014, the Court issued a subsequent discovery and scheduling order, which was also
26
returned as undeliverable on May 19, 2014.
27
28
Plaintiff is required to keep the Court apprised of his current address at all times, and Local
Rule 183(b) provides, “If mail directed to a plaintiff in propria persona by the Clerk is returned by the
1
1
U.S. Postal Service, and if such plaintiff fails to notify the Court and opposing parties within sixty-
2
three (63) days thereafter of a current address, the Court may dismiss the action without prejudice for
3
failure to prosecute.” Federal Rule of Civil Procedure 41(b) also provides for dismissal of an action
4
for failure to prosecute. Courts may dismiss actions sua sponte under Rule 41(b) based on the
5
plaintiff’s failure to prosecute. Hells Canyon Preservation Council v. U. S. Forest Serv., 403 F.3d 683,
6
689 (9th Cir. 2005) (citation omitted). Plaintiff’s address change was due by May 28, 2014, but he
7
failed to file one and he has not otherwise been in contact with the Court.
8
On June 9, 2014, the Court issued an order to show cause why the action should not be
9
dismissed. The Court’s order was returned as undeliverable on June 18, 2014, and Plaintiff failed to
10
respond to the Court’s order. Thus, dismissal of the action is warranted.
11
II.
12
DISCUSSION
13
“In determining whether to dismiss an action for lack of prosecution, the district court is
14
required to consider several factors: (1) the public’s interest in expeditious resolution of litigation; (2)
15
the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy
16
favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Carey
17
v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (internal quotation marks and citation omitted); accord
18
Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010); In re Phenylpropanolamine (PPA)
19
Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006). These factors guide a court in
20
deciding what to do, and are not conditions that must be met in order for a court to take action. In re
21
PPA, 460 F.3d at 1226 (citation omitted).
22
This case has been pending since 2013, and the expeditious resolution of litigation and the
23
Court’s need to manage its docket weigh in favor of dismissal. Id. at 1227. Further, the opposing
24
party is necessarily prejudiced when he is unaware of the plaintiff’s location during the discovery
25
phase of the litigation. Id.
26
With respect to the fourth factor, “public policy favoring disposition of cases on their merits
27
strongly counsels against dismissal,” but “this factor lends little support to a party whose responsibility
28
it is to move a case toward disposition on the merits but whose conduct impedes progress in that
2
1
direction.” Id. at 1228.
2
Finally, given the Court’s and Defendant’s inability to communicate with Plaintiff, there are no
3
other reasonable alternatives available to address Plaintiff’s failure to prosecute. In re PPA, 460 F.3d
4
at 1228-29; Carey, 856 F.2d at 1441.
5
III.
6
ORDER
7
Accordingly,
8
IT IS HEREBY ORDERED that this action is DISMISSED, without prejudice, based on
9
Plaintiff’s failure to prosecute. Fed. R. Civ. P. 41(b); Local Rule 183(b).
10
11
IT IS SO ORDERED.
12
Dated:
13
July 11, 2014
UNITED STATES MAGISTRATE JUDGE
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?