Rodriguez v. Mims

Filing 9

ORDER Dismissing Action for Failure to Follow Court Order and Failure to Prosecute, signed by Magistrate Judge Dennis L. Beck on 02/13/15. CASE CLOSED. (Gonzalez, R)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 DANIEL RODRIGUEZ, Plaintiff, 11 12 Case No. 1:14-cv-01729 DLB ORDER DISMISSING ACTION FOR FAILURE TO FOLLOW COURT ORDER AND FAILURE TO PROSECUTE v. 13 MIMS, et al., 14 Defendants. _____________________________________/ 15 16 Plaintiff Daniel Rodriguez (“Plaintiff”) is an inmate in the Fresno County Jail proceeding 17 pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed 18 this action on November 6, 2014. 19 On December 2, 2014, the Court dismissed the complaint with leave to amend. Plaintiff 20 was ordered to file an amended complaint within thirty days of the date of service of the order. 21 On December 8, 2014, the order was returned by the United States Postal Service as 22 “Undeliverable, Not in Custody.” 23 24 DISCUSSION Plaintiff is required to keep the Court apprised of his current address at all times, and Local 25 Rule 183(b) provides, “If mail directed to a plaintiff in propria persona by the Clerk is returned by 26 the U.S. Postal Service, and if such plaintiff fails to notify the Court and opposing parties within 27 sixty-three (63) days thereafter of a current address, the Court may dismiss the action without 28 1 2 prejudice for failure to prosecute.” Federal Rule of Civil Procedure 41(b) also provides for 3 dismissal of an action for failure to prosecute.1 Plaintiff’s address change was due by February 9, 2015, but he failed to file one and he has 4 5 not otherwise been in contact with the Court. “In determining whether to dismiss an action for 6 lack of prosecution, the district court is required to consider several factors: (1) the public’s 7 interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 8 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 9 merits; and (5) the availability of less drastic sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th 10 Cir. 1988) (internal quotation marks and citation omitted); accord Omstead v. Dell, Inc., 594 F.3d 11 1081, 1084 (9th Cir. 2010); In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 12 F.3d 1217, 1226 (9th Cir. 2006). These factors guide a court in deciding what to do, and are not 13 conditions that must be met in order for a court to take action. In re PPA, 460 F.3d at 1226 14 (citation omitted). 15 This case has been pending since November 2014, without an operative complaint, and the 16 expeditious resolution of litigation and the Court’s need to manage its docket weigh in favor of 17 dismissal. Id. at 1227. With respect to the fourth factor, “public policy favoring disposition of cases on their 18 19 merits strongly counsels against dismissal,” but “this factor lends little support to a party whose 20 responsibility it is to move a case toward disposition on the merits but whose conduct impedes 21 progress in that direction.” Id. at 1228. Finally, given the Court’s inability to communicate with Plaintiff, there are no other 22 23 reasonable alternatives available to address Plaintiff’s failure to prosecute. In re PPA, 460 F.3d at 24 1228-29; Carey, 856 F.2d at 1441. 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 1 2 ORDER Accordingly, this action is DISMISSED, WITHOUT PREJUDICE, based on Plaintiff’s 3 failure to prosecute. Fed. R. Civ. P. 41(b); Local Rule 183(b). 4 5 6 7 IT IS SO ORDERED. Dated: /s/ Dennis February 13, 2015 L. Beck UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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