Dynes v. Fresno County Medical Department, et al

Filing 16

ORDER DISMISSING Action without prejudice for failure to prosecute, signed by Magistrate Judge Dennis L. Beck on 03/25/2014. CASE CLOSED(Martin-Gill, S)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 ) ) ) ) Plaintiff, ) ) vs. ) FRESNO COUNTY MEDICAL DEPT., et al., ) ) ) Defendants. JOHN RAY DYNES, 1:13cv01829 DLB PC ORDER DISMISSING ACTION WITHOUT PREJUDICE FOR FAILURE TO PROSECUTE 16 17 Plaintiff John Ray Dynes, a prisoner in the custody of the Fresno County Jail, is 18 proceeding pro se and in forma pauperis1 in this civil rights action. Plaintiff filed this action on 19 November 13, 2013.2 On December 17, 2013, the Court dismissed Plaintiff’s complaint with 20 leave to amend. Plaintiff has not yet filed an amended complaint. 21 22 23 On January 15, 2014, the United States Postal Service returned the Court’s January 10, 2014, order denying Plaintiff’s motion for injunctive relief. The mail was marked “Undeliverable, Not in Custody.” Plaintiff has not updated his address or otherwise 24 25 26 27 communicated with the Court since his December 13, 2013, motion for injunctive relief. 1 It appears that Plaintiff may have three strikes under 28 U.S.C. § 1915(g). However, based on the allegations in this action, Plaintiff meets the imminent danger exception of section 1915(g). 2 28 On November 21, 2013, Plaintiff consented to the jurisdiction of the United States Magistrate Judge for all purposes. 1 1 2 3 4 5 6 DISCUSSION 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 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.” Federal Rule of Civil Procedure 41(b) also 7 provides for dismissal of an action for failure to prosecute. 8 9 10 11 12 Plaintiff’s address change was due by March 19, 2014, but he failed to file one and he has not otherwise been in contact with the Court. “In determining whether to dismiss an action for lack of prosecution, the district court is required to consider several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 13 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 14 merits; and (5) the availability of less drastic sanctions.” Carey v. King, 856 F.2d 1439, 1440 15 (9th Cir. 1988) (internal quotation marks and citation omitted); accord Omstead v. Dell, Inc., 594 16 F.3d 1081, 1084 (9th Cir. 2010); In re Phenylpropanolamine (PPA) Products Liability 17 Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006). These factors guide a court in deciding what to 18 do, and are not conditions that must be met in order for a court to take action. In re PPA, 460 19 F.3d at 1226 (citation omitted). 20 21 22 23 24 25 This case has been pending since November 2013, and the expeditious resolution of litigation and the Court’s need to manage its docket weigh in favor of dismissal. Id. at 1227. Further, the opposing party is necessarily prejudiced when he is unaware of an action against him. Id. With respect to the fourth factor, “public policy favoring disposition of cases on their merits strongly counsels against dismissal,” but “this factor lends little support to a party whose 26 27 28 responsibility it is to move a case toward disposition on the merits but whose conduct impedes progress in that direction.” Id. at 1228. 2 1 2 3 4 5 Finally, given the Court’s inability to communicate with Plaintiff, there are no other reasonable alternatives available to address Plaintiff’s failure to prosecute. In re PPA, 460 F.3d at 1228-29; Carey, 856 F.2d at 1441. Accordingly, the Court ORDERS that this action be DISMISSED, without prejudice, based on Plaintiff’s failure to prosecute. Fed. R. Civ. P. 41(b); Local Rule 183(b). 6 7 8 9 IT IS SO ORDERED. 10 11 Dated: /s/ Dennis March 25, 2014 L. Beck UNITED STATES MAGISTRATE JUDGE 12 13 DEAC_Signature-END: 9b0hied 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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