Savala v. Mims et al

Filing 5

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gary S. Austin on 11/5/2014 recommending that 1 Prisoner Civil Rights Complaint be dismissed. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 11/28/2014. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICHARD J. SAVALA, SR.,

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Plaintiff,

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vs.
MARGARET MIMS, et al.,

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Defendants.

1:14-cv-01232-LJO-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS CASE BE
DISMISSED, WITHOUT PREJUDICE, FOR
PLAINTIFF’S FAILURE TO PROSECUTE
OBJECTIONS, IF ANY, DUE WITHIN
TWENTY (20) DAYS

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I.

BACKGROUND

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Richard J. Savala, Sr. (APlaintiff@) is a Fresno County Jail inmate proceeding pro se with

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this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint commencing

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this action on August 6, 2014. (Doc. 1.)

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II.

FINDINGS

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On August 6, 2014, the court mailed case documents to Plaintiff, including notice of his

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new case and an order requiring Plaintiff to complete and return the court’s consent-to-

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Magistrate form within thirty days. (Doc. 3.) On August 7, 2014, the court issued an order

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granting Plaintiff leave to proceed in forma pauperis. (Doc. 4.) The documents and orders

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were served upon Plaintiff at his last known address at Fresno County Jail in Fresno,

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California. (Docs. 3, 4 - notice of electronic filing.)

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On August 12, 2014 and August 13, 2014, the United States Postal Service returned the

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documents and orders as undeliverable. (Court Docket.) Notations on the envelopes indicated

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that Plaintiff is “Not in Custody.” (Id.) Plaintiff has not notified the court of any change in his

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address. Absent such notice, service at a party’s prior address is fully effective. Local Rule

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182(f). Pursuant to Local Rule 183(b), a party appearing in propria persona is required to keep

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the court apprised of his or her current address at all times. Local Rule 183(b) provides:
“A party appearing in propria persona shall keep the Court and
opposing parties advised as to his or her current address. 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.”

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In this case, more than sixty-three days have passed since Plaintiff’s mail was returned,

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and he has not notified the court of a current address.

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In determining whether to dismiss an action for lack of prosecution, the court must

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consider several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the

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court’s need to manage its docket; (3) the risk of prejudice to the respondents; (4) the public

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policy favoring disposition of cases on their merits; and (5) the availability of less drastic

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alternatives. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); Omstead v. Dell, 594

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F.3d 1081, 1084 (9th Cir. 2010). The court finds that the public’s interest in expeditiously

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resolving this litigation and the court’s interest in managing the docket weigh in favor of

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dismissal, as this case has been pending since August 6, 2014. The court cannot hold this case

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in abeyance indefinitely based on Plaintiff’s failure to notify the court of his address. The third

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factor, risk of prejudice to respondents, also weighs in favor of dismissal, since a presumption

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of injury arises from the occurrence of unreasonable delay in prosecuting an action. Anderson

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v. Air West, 542 F.2d 522, 524 (9th Cir. 1976); In re Phenylpropanolamine (PPA) Products

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Liability Litigation, 460 F.3d 1217, 1228-29 (9th Cir. 2006). The fourth factor, public policy

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favoring disposition of cases on their merits, is greatly outweighed by the factors in favor of

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dismissal discussed herein. Finally, given the court’s inability to communicate with Plaintiff

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///

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based on Plaintiff’s failure to keep the court apprised of his current address, no lesser sanction

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is feasible.

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III.

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RECOMMENDATIONS
Based on the foregoing, the court HEREBY RECOMMENDS that this action be

DISMISSED without prejudice, based on Plaintiff’s failure to prosecute.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within twenty

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(20) days after being served with these findings and recommendations, Plaintiff may file

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written objections with the court.

Such a document should be captioned "Objections to

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Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file

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objections within the specified time may waive the right to appeal the District Court's order.

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

November 5, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE