Black v. Fresno County Sheriff Department

Filing 13

FINDINGS And RECOMMENDATIONS Recommending Dismissal Of Action For Failure To Prosecute, Ten-Day Objection Deadline, signed by Magistrate Judge Dennis L. Beck on 10/27/2015. Prisoner Civil Rights Complaint filed by Dale H. Black. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 11/9/2015.(Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DALE H. BLACK,
Plaintiff,

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v.
FRESNO COUNTY SHERIFF
DEPARTMENT, et al.,

Case No. 1:15-cv-00944 LJO DLB PC
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSAL OF
ACTION FOR FAILURE TO PROSECUTE
TEN-DAY OBJECTION DEADLINE

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Defendants.
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_____________________________________/
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Plaintiff Dale H. Black, a state prisoner proceeding pro se and in forma pauperis, filed this
civil rights action pursuant to 42 U.S.C. § 1983 on June 15, 2015.
On July 10, 2015, the Court issued an order granting Plaintiff’s application to proceed in
forma pauperis. The order was returned by the United States Postal Service as undeliverable on
July 31, 2015.
Plaintiff is required to keep the Court apprised of his current address at all times, and Local
Rule 183(b) provides, “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.” Federal Rule of Civil Procedure 41(b) also provides for

1 dismissal of an action for failure to prosecute.1
Plaintiff’s address change was due by October 8, 2015, but he failed to file one and he has

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3 not otherwise been in contact with the Court. “In determining whether to dismiss an action for
4 lack of prosecution, the district court is required to consider several factors: (1) the public’s
5 interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the
6 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their
7 merits; and (5) the availability of less drastic sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th
8 Cir. 1988) (internal quotation marks and citation omitted); accord Omstead v. Dell, Inc., 594 F.3d
9 1081, 1084 (9th Cir. 2010); In re Phenylpropanolamine (PPA) Products Liability Litigation, 460
10 F.3d 1217, 1226 (9th Cir. 2006). These factors guide a court in deciding what to do, and are not
11 conditions that must be met in order for a court to take action. In re PPA, 460 F.3d at 1226
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This case has been pending since June, and the expeditious resolution of litigation and the

14 Court’s need to manage its docket weigh in favor of dismissal. Id. at 1227. Further, the opposing
15 party is necessarily prejudiced when he is unaware of the plaintiff’s location during the discovery
16 phase of the litigation. Id.
With respect to the fourth factor, “public policy favoring disposition of cases on their

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18 merits strongly counsels against dismissal,” but “this factor lends little support to a party whose
19 responsibility it is to move a case toward disposition on the merits but whose conduct impedes
20 progress in that direction.” Id. at 1228.
Finally, given the Court’s and Defendant’s inability to communicate with Plaintiff, there

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22 are no other reasonable alternatives available to address Plaintiff’s failure to prosecute. In re PPA,
23 460 F.3d at 1228-29; Carey, 856 F.2d at 1441.
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Accordingly, the Court HEREBY RECOMMENDS DISMISSAL of this action, without

25 prejudice, based on Plaintiff’s failure to prosecute. Fed. R. Civ. P. 41(b); Local Rule 183(b).
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These Findings and Recommendations will be submitted to the United States District

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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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1 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within ten
2 (10) days after being served with these Findings and Recommendations, the parties may file
3 written objections with the Court. The document should be captioned “Objections to Magistrate
4 Judge’s Findings and Recommendations.” The parties are advised that failure to file objections
5 within the specified time may waive the right to appeal the District Court’s order. Martinez v.
6 Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
Dated:

/s/ Dennis

October 27, 2015

L. Beck

UNITED STATES MAGISTRATE JUDGE

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