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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANIEL RODRIGUEZ,
Plaintiff,

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Case No. 1:14-cv-01729 DLB
ORDER DISMISSING ACTION FOR
FAILURE TO FOLLOW COURT ORDER
AND FAILURE TO PROSECUTE

v.

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MIMS, et al.,

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Defendants.
_____________________________________/

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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.
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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.
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On December 8, 2014, the order was returned by the United States Postal Service as

22 “Undeliverable, Not in Custody.”
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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
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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

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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).
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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

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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

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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.
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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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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).
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IT IS SO ORDERED.
Dated:

/s/ Dennis

February 13, 2015

L. Beck

UNITED STATES MAGISTRATE JUDGE

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