Sheward v. Weber et al

Filing 7

FINDINGS and RECOMMENDATIONS Regarding Dismissal of 1 Action Without Prejudice for Failure to Prosecute; Fourteen-Day Deadline signed by Magistrate Judge Barbara A. McAuliffe on 5/19/2015. Referred to Judge Anthony W. Ishii. Objections to F&R due by 6/8/2015. (Sant Agata, S)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ANTHONY WAYNE SHEWARD, Case No. 1:15-cv-00015-AWI-BAM (PC) Plaintiff, 11 v. 12 13 JANEANE WEBER, et al., 14 Defendants. FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION WITHOUT PREJUDICE FOR FAILURE TO PROSECUTE FOURTEEN-DAY DEADLINE 15 _____________________________________/ 16 17 I. Background 18 Plaintiff Anthony Wayne Sheward, a county jail inmate proceeding pro se, filed this civil 19 rights action pursuant to 42 U.S.C. § 1983 on December 30, 2014. Plaintiff also filed an 20 application to proceed in forma pauperis. (ECF Nos. 1, 2.) 21 On January 8, 2015, the Court issued an order directing Plaintiff to submit his consent or 22 decline to the jurisdiction of the Magistrate Judge within thirty days. (ECF No. 3.) The following 23 day, on January 9, 2015, the Court issued an order directing Plaintiff to file a completed 24 application to proceed in forma pauperis or pay the filing in fee in full within forty-five days. 25 (ECF No. 4.) Plaintiff did not respond to either order in a timely manner or otherwise contact the 26 Court. 27 On March 6, 2015, the Court issued a second order directing Plaintiff to submit his consent 28 or decline to the jurisdiction of the Magistrate Judge within thirty days. (ECF No. 5.) The Court’s 1 second order regarding consent or decline to Magistrate Judge jurisdiction, which was directed to 2 the Plaintiff by the Clerk, was returned by the United States Postal Service as undeliverable, not in 3 custody on March 6, 2015. 4 II. 5 Plaintiff is required to keep the Court apprised of his current address at all times. Local Discussion 6 Rule 183(b) provides: 7 Address Changes. 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 sixtythree (63) days thereafter of a current address, the Court may dismiss the action without prejudice for failure to prosecute. 8 9 10 11 12 Federal Rule of Civil Procedure 41(b) also provides for dismissal of an action for failure to prosecute.1 13 14 According to the Court’s docket, Plaintiff’s address change was due no later than May 14, 2015. Plaintiff has failed to file a change of address and he has not otherwise been in contact with 15 the Court. “In determining whether to dismiss an action for lack of prosecution, the district court 16 is required to weigh several factors: (1) the public’s interest in expeditious resolution of litigation; 17 (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 18 19 20 21 22 23 policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (internal quotation marks and citation omitted); accord Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010); In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006). These factors guide a court in deciding what to do, and are not conditions that must be met in order for a court to take action. In re PPA, 460 F.3d at 1226 (citation omitted). 24 Given Plaintiff’s repeated failure to respond to this Court’s orders, the expeditious 25 resolution of litigation and the Court’s need to manage its docket weigh in favor of dismissal. Id. 26 at 1227. More importantly, given the Court’s apparent inability to communicate with Plaintiff, 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 there are no other reasonable alternatives available to address Plaintiff’s failure to prosecute this 2 action and his failure to apprise the Court of his current address. In re PPA, 460 F.3d at 1228-29; 3 Carey, 856 F.2d at 1441. The Court will therefore recommend that this action be dismissed based 4 on Plaintiff’s failure to prosecute this action. 5 III. 6 For the reasons stated, it is HEREBY RECOMMENDED that this action be dismissed, Conclusion and Recommendation 7 without prejudice, based on Plaintiff’s failure to prosecute. Fed. R. Civ. P. 41(b); Local Rule 8 183(b). 9 These Findings and Recommendations will be submitted to the United States District 10 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 11 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 12 file written objections with the Court. The document should be captioned “Objections to 13 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 14 objections within the specified time may result in the waiver of the “right to challenge the 15 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 16 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 17 18 19 20 IT IS SO ORDERED. Dated: /s/ Barbara May 19, 2015 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 3

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