Sorrells v. United States Marshals Service et al
Filing
71
FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED, Without Prejudice, Based on Plaintiff's Failure to Prosecute and 69 , 70 Defendants' Motion for Summary Judgment be DENIED AS MOOT re 20 Amended Prisoner Civil Rights Complaint signed by Magistrate Judge Stanley A. Boone on 10/25/2018. Referred to Judge Drozd. Objections to F&R due within fourteen (14) days. (Jessen, A)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
SHANNON SORRELLS,
12
13
14
Plaintiff,
v.
HORTON,
Defendants.
15
16
17
18
19
)
)
)
)
)
)
)
)
)
)
Case No. 1:16-cv-00081-DAD-SAB (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DEFENDANTS’ MOTION TO
DISMISS BE GRANTED, AND DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT BE
DENIED AS RENDERED MOOT
[ECF Nos. 69, 70]
Plaintiff Shannon Sorrells is appearing pro se and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983.
Currently before the Court is Defendants’ motion to dismiss, filed October 3, 2018.
20
I.
21
PROCEDURAL BACKGROUND
22
23
24
This action is proceeding against Defendants Horton and Mehlhoff for deliberate indifference
to a serious medical need in violation of the Fourteenth Amendment.
On March 13, 2017, Defendant Mehlhoff waived filing an answer. On March 14, 2017, the
25
Court issued the discovery and scheduling order. On May 23, 2017, Defendant Horton filed an answer
26
to the complaint. On May 26, 2017, the Court extended the deadline to file an exhaustion motion for
27
summary judgment to July 14, 2017, and extended all other deadlines and provisions to both
28
Defendants.
1
On July 14, 2017, Defendants filed an exhaustion-related motion for summary judgment.
1
2
Plaintiff filed an opposition on July 31, 2017, and Defendants filed a reply on August 1, 2017.
3
On November 14, 2017, the undersigned issued Findings and Recommendations
4
recommending that Defendants’ exhaustion-related motion for summary judgment be denied. The
5
Findings and Recommendations were adopted in full on March 23, 2018, and Defendants’ exhaustion-
6
related motion for summary judgment was denied
On November 30, 2017, Defendants filed a motion for judgment on the pleadings. Plaintiff did
7
8
not file an opposition. On May 2, 2018, the undersigned issued Findings and Recommendations
9
recommending that Defendants’ motion for judgment on the pleadings be denied. The Findings and
10
Recommendations were adopted in full on July 24, 2018.
As previously stated, on October 3, 2018, Defendants filed a motion to dismiss the action for
11
12
Plaintiff’s failure to prosecute. Plaintiff did not file an opposition and the time to do has expired.
13
Local Rule 230(l).
14
II.
15
DISCUSSION
16
At the time this action was filed, Plaintiff was incarcerated the Fresno County Jail. Plaintiff’s
17
most recent address of record is Dismas Charities, Inc. 100 Tishomingo Street, Tupelo, MS. 38804,
18
and Plaintiff was scheduled to be released on April 18, 2018. (See ECF No. 63.)
19
On May 22, 2018, the Court received a returned order that was issued on May 2, 2018. The
20
sixty-three (63) day period for notice of change of address has now expired, and Plaintiff has not filed
21
a notice of change of address or otherwise notified the Court.
22
Pursuant to Local Rule 182(f), a party appearing in propria persona is required to keep the
23
Court apprised of his or her current address at all times. Plaintiff was advised of this rule in the
24
Court’s First Informational Order. (ECF No. 4.) Local Rule 183(b) provides, in pertinent part:
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.
25
26
27
28
///
2
In the instant case, more than sixty-three days have passed since Plaintiff’s mail was returned,
1
2
and he has not notified the Court of a current address.
3
“In determining whether to dismiss an action for lack of prosecution, the district court is
4
required to consider several factors: ‘(1) the public’s interest in expeditious resolution of litigation; (2)
5
the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy
6
favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.’” Carey
7
v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423
8
(9th Cir. 1986)). These factors guide a court in deciding what to do, and are not conditions that must
9
be met in order for a court to take action. In re Phenylpropanolamine (PPA) Prods. Liab. Lit., 460
10
F.3d 1217, 1226 (9th Cir. 2006) (citation omitted).
11
In this instance, Local Rule 183(b) provides for the dismissal of an action based on returned
12
mail. Given the Court’s inability to communicate with Plaintiff, dismissal is warranted and there are
13
no other reasonable alternatives available. See Carey, 856 F.2d at 1441.
14
III.
15
RECOMMENDATIONS
16
Based on the foregoing, it is hereby RECOMMENDED that:
17
1.
18
This action be DISMISSED, without prejudice, based on Plaintiff’s failure to
prosecute; and
2.
19
20
moot.
21
///
22
///
23
Defendants’ motion for summary judgment, filed on October 22, 2018, be denied as
///
24
25
///
///
26
///
27
28
///
3
1
These Findings and Recommendations will be submitted to the United States District Judge
2
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) days
3
after being served with these Findings and Recommendations, the parties may file written objections
4
with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and
5
Recommendations.” The parties are advised that failure to file objections within the specified time
6
may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir.
7
2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
8
9
10
11
IT IS SO ORDERED.
Dated:
October 25, 2018
UNITED STATES MAGISTRATE JUDGE
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?