Bettencourt v. Parks et al

Filing 109

FINDINGS and RECOMMENDATIONS to Dismiss Action for Failure to Prosecute re 33 signed by Magistrate Judge Barbara A. McAuliffe on 2/29/2024. Referred to Judge NODJ. Objections to F&R due within 14 days. (Xiong, J.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GARY RAY BETTENCOURT,

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Plaintiff,

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v.

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PARKER, et al.,

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Case No. 1:16-cv-00150-NODJ-BAM (PC)
FINDINGS AND RECOMMENDATION TO
DISMISS ACTION FOR FAILURE TO
PROSECUTE
FOURTEEN (14) DAY DEADLINE

Defendants.

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I.

Background
Plaintiff Gary Ray Bettencourt (“Plaintiff”) is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on

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Plaintiff’s claims of deliberate indifference in violation of the Eighth Amendment against

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Defendant Crooks for pulling two teeth that did not need to be pulled, and against Defendants

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Parker and Guzman for filing down six healthy teeth with a dental tool used for drilling cavities.
On December 1, 2023, this case was temporarily reassigned to No District Court Judge

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(NODJ). (ECF No. 108.) On December 15, 2023, the Court’s order reassigning the case was

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returned as “Undeliverable, Inactive.” Plaintiff’s notice of change of address was therefore due

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on or before February 16, 2024. Local Rule 183(b).
Plaintiff has not filed a notice of change of address or otherwise communicated with the

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Court.
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II.

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Discussion
Plaintiff is required to keep the Court apprised of his current address at all times. Local

Rule 183(b) provides:

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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.

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Federal Rule of Civil Procedure 41(b) also provides for dismissal of an action for failure to

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prosecute.1

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Plaintiff’s address change was due no later than February 16, 2024. Plaintiff has failed to

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file a change of address and he has not otherwise been in contact with the Court. “In determining

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whether to dismiss an action for lack of prosecution, the district court is required to weigh several

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factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to

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manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring

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disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Carey v.

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King, 856 F.2d 1439, 1440 (9th Cir. 1988) (internal quotation marks and citation omitted); accord

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Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010); In re Phenylpropanolamine (PPA)

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Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006). These factors guide a court in

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deciding what to do, and are not conditions that must be met in order for a court to take action. In

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re PPA, 460 F.3d at 1226 (citation omitted).
Given Plaintiff’s failure to update his address or communicate with the Court, the

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expeditious resolution of litigation and the Court’s need to manage its docket weigh in favor of

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dismissal. Id. at 1227. More importantly, given the Court’s apparent inability to communicate

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with Plaintiff, there are no other reasonable alternatives available to address Plaintiff’s failure to

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prosecute this action and his failure to apprise the Court of his current address. Id. at 1228–29;

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Carey, 856 F.2d at 1441. The Court will therefore recommend that this action be dismissed based

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Courts may dismiss actions sua sponte under Rule 41(b) based on the plaintiff’s failure to prosecute. Hells Canyon
Pres. Council v. U. S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (citation omitted).
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on Plaintiff’s failure to prosecute this action.

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III.

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Conclusion and Recommendation
Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed, without

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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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Judge assigned to the case, under the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14)

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days after being served with these Findings and Recommendations, the parties may file written

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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” The parties are advised that failure to file objections within the

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specified time may result in the waiver of the “right to challenge the magistrate’s factual

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findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v.

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Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

February 29, 2024

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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