Trotter v. Pfeiffer

Filing 47

FINDINGS and RECOMMENDATIONS Regarding Dismissal of 27 Action for Failure to Prosecute signed by Magistrate Judge Barbara A. McAuliffe on 10/31/2019. Referred to Judge O'Neill; Objections to F&R due by 11/18/2019.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES TROTTER,

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Plaintiff,

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v.
WARDEN PFEIFFER, et al.,

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Defendants.

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Case No. 1:18-cv-00259-BAM (PC)
ORDER DIRECTING CLERK OF COURT TO
RANDOMLY ASSIGN DISTRICT JUDGE TO
ACTION
FINDINGS AND RECOMMENDATION
REGARDING DISMISSAL OF ACTION FOR
FAILURE TO PROSECUTE
FOURTEEN (14) DAY DEADLINE

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I.

Background
Plaintiff James Trotter is a state prisoner proceeding pro se and in forma pauperis in this

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civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States

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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On August 1, 2019, the Court issued an order denying Plaintiff’s motion for new trial,

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review of evidence, immediate release, restoration of bail, and appointment of counsel. (ECF No.

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41.) On August 9, 2019, the Court issued another order denying second of Plaintiff’s motions for

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new trial, review of evidence, resentencing, and appointment of counsel. (ECF No. 43.) On

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August 13, 2019, the Court issued an order granting Plaintiff’s motion for an extension of time to

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file a second amended complaint and denying, without prejudice, Plaintiff’s motion for

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appointment of counsel. (ECF No. 46.)
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On August 22, 2019, the Court’s August 1, 2019 order was returned as “Undeliverable,

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Inmate Refused.” Also, on August 22, 2019, the Court’s August 9, 2019 order was returned as

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“Undeliverable, Refused.” On September 9, 2019, the Court’s August 13, 2019 order was

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returned as “Undeliverable, Unable to Forward.” Plaintiff has not filed a notice of change of

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address, filed a second amended complaint, or otherwise communicated with the 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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According to Local Rule 183(b), Plaintiff’s address change was due no later than October

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24, 2019. Plaintiff has failed to file a change of address and he has not otherwise been in contact

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with the Court.

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“In determining whether to dismiss an action for lack of prosecution, the district court is

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required to weigh several factors: (1) the public’s interest in expeditious resolution of litigation;

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(2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public

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policy favoring disposition of cases on their merits; and (5) the availability of less drastic

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sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (internal quotation marks and

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

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Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006).

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These factors guide a court in deciding what to do and are not conditions that must be met in

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order for a court to take action. In re PPA, 460 F.3d at 1226 (citation omitted).

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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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Here, the expeditious resolution of litigation and the Court’s need to manage its docket

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weigh in favor of dismissal. Id. at 1227. More importantly, given the Court’s apparent inability

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to communicate with Plaintiff, there are no other reasonable alternatives available to address

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Plaintiff’s failure to prosecute this action and his failure to apprise the Court of his current

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address. Id. at 1228–29; Carey, 856 F.2d at 1441. The Court will therefore recommend that this

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action be dismissed based on Plaintiff’s failure to prosecute this action.

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III.

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Order and Recommendation
Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a

Fresno District Judge to this action.
Furthermore, for the reasons explained above, it is HEREBY RECOMMENDED that the

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instant action be dismissed, without prejudice, based on Plaintiff’s failure to prosecute. Fed. R.

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Civ. P. 41(b); Local Rule 183(b).

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These findings and recommendation will be submitted to the United States District Judge

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

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(14) days after being served with these findings and recommendation, Plaintiff 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 Recommendation.” Plaintiff is 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

October 31, 2019

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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