Herrera et al v. California State Superior Courts et al

Filing 4

FINDINGS and RECOMMENDATIONS Regarding Dismissal of 1 Action for Failure to Prosecute signed by Magistrate Judge Barbara A. McAuliffe on 08/02/017. Referred to Judge Ishii.(Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DANIEL HERRERA, et al., 12 13 14 15 Case No. 1:17-cv-0386-AWI-BAM Plaintiff, FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION FOR FAILURE TO PROSECUTE v. CALIFORNIA STATE SUPERIOR COURTS, et al., FOURTEEN (14) DAY DEADLINE Defendants. 16 17 Findings and Recommendations 18 I. 19 Background Plaintiff Daniel Herrera (“Plaintiff”) is a state prisoner proceeding pro se and in forma 20 pauperis in this civil rights action under 42 U.S.C. § 1983. Plaintiff initiated this action on March 21 22 16, 2017. (ECF No. 1). On April 5, 2017, the Court issued an order granting Plaintiff’s motion to proceed in forma pauperis. (ECF No. 3). On May 16, 2017, the Court’s order was returned as 23 undeliverable. 24 II. Discussion 25 Plaintiff is required to keep the Court apprised of his current address at all times. Local 26 Rule 183(b) provides: 27 28 Address Changes. A party appearing in propria persona shall keep the Court 1 1 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. 2 3 4 5 Federal Rule of Civil Procedure 41(b) also provides for dismissal of an action for failure to prosecute.1 6 7 According to the Court’s docket, Plaintiff’s address change was due no later than April 24, 2017. Plaintiff has failed to file a change of address and he has not otherwise been in contact 8 with the Court. “In determining whether to dismiss an action for lack of prosecution, the district 9 court is required to weigh several factors: (1) the public’s interest in expeditious resolution of 10 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; 11 12 13 14 15 16 (4) the public 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). 17 Given Plaintiff’s failure to respond to this Court’s orders, the expeditious resolution of 18 litigation and the Court’s need to manage its docket weigh in favor of dismissal. Id. at 1227. 19 More importantly, given the Court’s apparent inability to communicate with Plaintiff, there are no 20 other reasonable alternatives available to address Plaintiff’s failure to prosecute this action and his 21 22 23 failure to apprise the Court of his current address. Id. at 1228–29; Carey, 856 F.2d at 1441. The Court will therefore recommend that this action be dismissed based on Plaintiff’s failure to prosecute this action. 24 III. 25 26 Conclusion and Recommendation For the reasons stated, the Court HEREBY RECOMMENDS that this action be dismissed, without prejudice, based on Plaintiff’s failure to prosecute. Fed. R. Civ. P. 41(b); Local Rule 27 1 28 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). 2 1 183(b). 2 These Findings and Recommendations will be submitted to the United States District 3 Judge assigned to the case, under the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 4 days after being served with these Findings and Recommendations, Plaintiff may file written 5 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 6 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 7 specified time may result in the waiver of the “right to challenge the magistrate’s factual 8 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 9 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 10 11 12 IT IS SO ORDERED. Dated: /s/ Barbara August 2, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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