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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD J. SAVALA, SR., 12 Plaintiff, 13 14 vs. MARGARET MIMS, et al., 15 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 16 17 18 I. BACKGROUND 19 Richard J. Savala, Sr. (APlaintiff@) is a Fresno County Jail inmate proceeding pro se with 20 this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint commencing 21 this action on August 6, 2014. (Doc. 1.) 22 II. FINDINGS 23 On August 6, 2014, the court mailed case documents to Plaintiff, including notice of his 24 new case and an order requiring Plaintiff to complete and return the court’s consent-to- 25 Magistrate form within thirty days. (Doc. 3.) On August 7, 2014, the court issued an order 26 granting Plaintiff leave to proceed in forma pauperis. (Doc. 4.) The documents and orders 27 were served upon Plaintiff at his last known address at Fresno County Jail in Fresno, 28 California. (Docs. 3, 4 - notice of electronic filing.) 1 On August 12, 2014 and August 13, 2014, the United States Postal Service returned the 2 documents and orders as undeliverable. (Court Docket.) Notations on the envelopes indicated 3 that Plaintiff is “Not in Custody.” (Id.) Plaintiff has not notified the court of any change in his 4 address. Absent such notice, service at a party’s prior address is fully effective. Local Rule 5 182(f). Pursuant to Local Rule 183(b), a party appearing in propria persona is required to keep 6 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.” 7 8 9 10 In this case, more than sixty-three days have passed since Plaintiff’s mail was returned, 11 12 and he has not notified the court of a current address. 13 In determining whether to dismiss an action for lack of prosecution, the court must 14 consider several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the 15 court’s need to manage its docket; (3) the risk of prejudice to the respondents; (4) the public 16 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 17 alternatives. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); Omstead v. Dell, 594 18 F.3d 1081, 1084 (9th Cir. 2010). The court finds that the public’s interest in expeditiously 19 resolving this litigation and the court’s interest in managing the docket weigh in favor of 20 dismissal, as this case has been pending since August 6, 2014. The court cannot hold this case 21 in abeyance indefinitely based on Plaintiff’s failure to notify the court of his address. The third 22 factor, risk of prejudice to respondents, also weighs in favor of dismissal, since a presumption 23 of injury arises from the occurrence of unreasonable delay in prosecuting an action. Anderson 24 v. Air West, 542 F.2d 522, 524 (9th Cir. 1976); In re Phenylpropanolamine (PPA) Products 25 Liability Litigation, 460 F.3d 1217, 1228-29 (9th Cir. 2006). The fourth factor, public policy 26 favoring disposition of cases on their merits, is greatly outweighed by the factors in favor of 27 dismissal discussed herein. Finally, given the court’s inability to communicate with Plaintiff 28 /// 1 based on Plaintiff’s failure to keep the court apprised of his current address, no lesser sanction 2 is feasible. 3 III. 4 5 RECOMMENDATIONS Based on the foregoing, the court HEREBY RECOMMENDS that this action be DISMISSED without prejudice, based on Plaintiff’s failure to prosecute. 6 These findings and recommendations are submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within twenty 8 (20) days after being served with these findings and recommendations, Plaintiff may file 9 written objections with the court. Such a document should be captioned "Objections to 10 Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file 11 objections within the specified time may waive the right to appeal the District Court's order. 12 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IT IS SO ORDERED. Dated: November 5, 2014 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

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