Gutierrez v. Mustafa, et al.

Filing 9

ORDER DISMISSING Action Without Prejudice for Failure to Prosecute, signed by Magistrate Judge Barbara A. McAuliffe on 6/25/14: This terminates the action in its entirety. (CASE CLOSED)(Hellings, J)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10

MANUEL GUTIERRREZ,
Plaintiff,

11
12

v.

13

ORDER DISMISSING ACTION WITHOUT
PREJUDICE FOR FAILURE TO
PROSECUTE

DR. MUSTAFA, et al.,

14

Case No. 1:13-cv-01428-BAM (PC)

Defendants.
_____________________________________/

15
16

Plaintiff Manuel Gutierrez, a state prisoner proceeding pro se and in forma pauperis, filed

17 this civil rights action pursuant to 42 U.S.C. § 1983 on September 9, 2013.
18

On April 10, 2014, the Court denied Plaintiff’s motion for leave to amend his complaint as

19 unnecessary. The order was returned by the United States Postal Service as undeliverable, not in
20 custody on April 16, 2014.
21

Plaintiff is required to keep the Court apprised of his current address at all times. Local

22 Rule 183(b) provides:
23
24
25

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.

26 Federal Rule of Civil Procedure 41(b) also provides for dismissal of an action for failure to
27
28

1 prosecute.1
Plaintiff’s address change was due no later than June 23, 2014, but he has failed to file one

2

3 and he has not otherwise been in contact with the Court. “In determining whether to dismiss an
4 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).
13

This case has been pending since 2013, and the expeditious resolution of litigation and the

14 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

18

19 failure to prosecute. Fed. R. Civ. P. 41(b); Local Rule 183(b). This terminates the action in its
20 entirety.
21
22

IT IS SO ORDERED.

23

Dated:

/s/ Barbara

June 25, 2014

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

24
25
26
27
28

1

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).

2