Maquinales v. Rohrdanz et al

Filing 17

ORDER DISMISSING CASE without prejudice for failure to prosecute,signed by Magistrate Judge Barbara A. McAuliffe on 01/13/15. CASE CLOSED (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICHARD MAQUINALES,
Plaintiff,

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v.

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ORDER DISMISSING ACTION WITHOUT
PREJUDICE FOR FAILURE TO
PROSECUTE

DAVID I. ROHRDANZ, et al.,

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Case No. 1:13-cv-01993-BAM (PC)

Defendants.
_____________________________________/

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Plaintiff Richard Maquinales (“Plaintiff”), a state prisoner proceeding pro se and in forma

17 pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on November 25, 2013. The
18 matter was transferred to this Court on December 5, 2013. Plaintiff consented to the jurisdiction
19 of the United States Magistrate Judge. (ECF No. 8.)
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On October 23, 2014, the Court dismissed Plaintiff’s first amended complaint with leave to

21 amend within thirty days. (ECF No. 16.) The order was returned by the United States Postal
22 Service as Undeliverable, Refused on October 30, 2014.
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Plaintiff is required to keep the Court apprised of his current address at all times. Local

24 Rule 183(b) provides in relevant part:
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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.

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

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More than sixty-three days have passed and Plaintiff has failed to file a notice of change of

3 address and 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
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This case has been pending since November 2013, and the expeditious resolution of

14 litigation and the Court’s need to manage its docket weigh in favor of dismissal. Id. at 1227.
15 More importantly, given the Court’s inability to communicate with Plaintiff, there are no other
16 reasonable alternatives available to address Plaintiff’s failure to prosecute this action. In re PPA,
17 460 F.3d at 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
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IT IS SO ORDERED.
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Dated:

/s/ Barbara

January 13, 2015

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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