Mejia v. State of California

Filing 9

ORDER VACATING 8 FINDINGS AND RECOMMENDATIONS; FINDINGS and RECOMMENDATIONS recommending that this Action be DISMISSED, Without Prejudice, Based on Plaintiff's Failure to Prosecute re 1 Complaint signed by Magistrate Judge Barbara A. McAuliffe on 11/6/2018. Referred to Judge Drozd. Objections to F&R due within fourteen (14) days. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANGEL A. MEJIA, 12 13 14 Plaintiff, v. STATE OF CALIFORNIA, 15 Case No. 1:18-cv-00220-DAD-BAM FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION FOR FAILURE TO PROSECUTE FOURTEEN (14) DAY DEADLINE Defendant. 16 17 I. Background 18 Plaintiff Angel A. Mejia (“Plaintiff”) is proceeding pro se and in forma pauperis in this 19 civil rights action under 42 U.S.C. § 1983. On April 18, 2018, the Court issued a screening order 20 granting Plaintiff leave to file an amended complaint within thirty (30) days. (Doc. No. 7.) On 21 June 4, 2018, when Plaintiff failed to file an amended complaint, the Court issued findings and 22 recommendations that this action be dismissed with prejudice based on Plaintiff’s failure to obey 23 a court order and failure to state a claim. (Doc. No. 8.) On June 18, 2018, the Court’s findings 24 and recommendations were returned as “Undeliverable, Attempted, Not Known, Unable to 25 Forward.” To date, Plaintiff has not filed an amended complaint, a notice of change of address, 26 or otherwise communicated with the Court. 27 II. Discussion 28 Plaintiff is required to keep the Court apprised of his current address at all times. Local 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 sixty-three (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 August 9 20, 2018. Plaintiff has failed to file a change of address and he has not otherwise been in contact 10 with the Court. “In determining whether to dismiss an action for lack of prosecution, the district 11 court is required to weigh several factors: (1) the public’s interest in expeditious resolution of 12 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; 13 (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less 14 drastic sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (internal quotation marks 15 and citation omitted); accord Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010); In re 16 Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006). 17 These factors guide a court in deciding what to do, and are not conditions that must be met in 18 order for a court to take action. In re PPA, 460 F.3d at 1226 (citation omitted). 19 Given Plaintiff’s failure to respond to this Court’s order, the expeditious resolution of 20 litigation and the Court’s need to manage its docket weigh in favor of dismissal. Id. at 1227. 21 More importantly, given the Court’s apparent inability to communicate with Plaintiff, there are no 22 other reasonable alternatives available to address Plaintiff’s failure to prosecute this action and his 23 failure to apprise the Court of his current address. Id. at 1228–29; Carey, 856 F.2d at 1441. The 24 Court will therefore recommend that this action be dismissed based on Plaintiff’s failure to 25 prosecute this action. 26 /// 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 III. Conclusion and Recommendation 2 Based on the foregoing, IT IS HEREBY ORDERED that the Findings and 3 Recommendations issued on June 4, 2018, be VACATED (Doc. No. 8.) Furthermore, the Court 4 HEREBY RECOMMENDS that this action be dismissed, without prejudice, based on Plaintiff’s 5 failure to prosecute. Fed. R. Civ. P. 41(b); Local Rule 183(b). 6 These Findings and Recommendations will be submitted to the United States District 7 Judge assigned to the case, under the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 8 days after being served with these Findings and Recommendations, Plaintiff may file written 9 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 10 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 11 specified time may result in the waiver of the “right to challenge the magistrate’s factual 12 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 13 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 15 16 17 IT IS SO ORDERED. Dated: /s/ Barbara November 6, 2018 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 3

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