Earley v. Katavich, et al.

Filing 9

FINDINGS and RECOMMENDATIONS recommending that this action be DISMISSED, without prejudice, based on Plaintiff's failure to prosecute FRCP 41(b); Local Rule 183(b) re 1 Prisoner Civil Rights Complaint ; referred to Judge O'Neill, signed by Magistrate Judge Barbara A. McAuliffe on 12/20/2016. Objections to F&R due (14-Day Deadline)(Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 VAUGHN S. EARLEY, 12 13 14 Plaintiff, v. JOHN N. KATAVICH, et al., 15 Case No. 1:15-cv-01284-LJO-BAM (PC) FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION FOR FAILURE TO PROSECUTE FOURTEEN (14) DAY DEADLINE Defendants. 16 17 Findings and Recommendations 18 I. 19 Background Plaintiff Vaughn S. Earley (“Plaintiff”) is a former state prisoner proceeding pro se and in 20 forma pauperis in this civil rights action under 42 U.S.C. § 1983. Plaintiff initiated this action on 21 August 21, 2015. (ECF No. 1.) 22 On September 22, 2016, this Court issued an order requiring Plaintiff to either file an 23 amended complaint or notify the Court of his willingness to proceed only on his cognizable 24 claims within thirty (30) days. (ECF No. 8.) On October 3, 2016, the screening order was returned 25 by the United States Postal Service as undeliverable, vacant. 26 II. Discussion 27 Plaintiff is required to keep the Court apprised of his current address at all times. Local 28 1 1 Rule 183(b) provides: 2 5 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. 6 Federal Rule of Civil Procedure 41(b) also provides for dismissal of an action for failure to 7 prosecute.1 3 4 8 According to the Court’s docket, Plaintiff’s address change was due no later than 9 December 12, 2016. Plaintiff has failed to file a change of address and he has not otherwise been 10 in contact with the Court. “In determining whether to dismiss an action for lack of prosecution, 11 the district court is required to weigh several factors: (1) the public’s interest in expeditious 12 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 13 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the 14 availability of less drastic sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) 15 (internal quotation marks and citation omitted); accord Omstead v. Dell, Inc., 594 F.3d 1081, 16 1084 (9th Cir. 2010); In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 17 1217, 1226 (9th Cir. 2006). These factors guide a court in deciding what to do, and are not 18 conditions that must be met in order for a court to take action. In re PPA, 460 F.3d at 1226 19 (citation omitted). Given Plaintiff’s failure to respond to this Court’s orders, the expeditious resolution of 20 21 litigation and the Court’s need to manage its docket weigh in favor of dismissal. Id. at 1227. More 22 importantly, given the Court’s apparent inability to communicate with Plaintiff, there are no other 23 reasonable alternatives available to address Plaintiff’s failure to prosecute this action and his 24 failure to apprise the Court of his current address. Id. at 1228-29; Carey, 856 F.2d at 1441. The 25 Court will therefore recommend that this action be dismissed based on Plaintiff’s failure to 26 prosecute this action. 27 1 28 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 III. 2 For the reasons stated, the Court HEREBY RECOMMENDS that this action be dismissed, Conclusion and Recommendation 3 without prejudice, based on Plaintiff’s failure to prosecute. Fed. R. Civ. P. 41(b); Local Rule 4 183(b). 5 These Findings and Recommendations will be submitted to the United States District 6 Judge assigned to the case, under the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 7 days after being served with these Findings and Recommendations, Plaintiff may file written 8 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 9 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 10 specified time may result in the waiver of the “right to challenge the magistrate’s factual 11 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 12 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 13 14 15 IT IS SO ORDERED. Dated: /s/ Barbara December 20, 2016 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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