(PC) Quine v. De La Cruz

Filing 17

FINDINGS and RECOMMENDATIONS to dismiss action for failure to prosecute signed by Magistrate Judge Barbara A. McAuliffe on 1/3/2025. Referred to Judge Kirk E. Sherriff; Objections to F&R due within 14-Days. (Deputy Clerk TEL)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SHILOH HEAVENLY QUINE,

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Plaintiff,

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v.

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DE LA CRUZ,

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Case No. 1:24-cv-00797-KES-BAM (PC)
FINDINGS AND RECOMMENDATION TO
DISMISS ACTION FOR FAILURE TO
PROSECUTE
FOURTEEN (14) DAY DEADLINE

Defendant.

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I.

Background

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Plaintiff Shiloh Heavenly Quine (“Plaintiff”) is a county jail inmate and former state

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prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C.

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§ 1983.

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On October 9, 2024, the Court issued an order denying Plaintiff’s motion to provide case

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file to future counsel as moot. (ECF No. 16.) On October 21, 2024, that order was returned as

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“Undeliverable, Return to Sender, Refused, Unable to Forward.” Plaintiff’s notice of change of

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address was therefore due on or before December 23, 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 her 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 December 23, 2024. Plaintiff has failed

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

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

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weigh several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the

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

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

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

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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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Given Plaintiff’s failure to update her 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 her failure to apprise the Court of her 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.” Objections, if any, shall not exceed fifteen (15) pages or

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include exhibits. Exhibits may be referenced by document and page number if already in

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the record before the Court. Any pages filed in excess of the 15-page limit may not be

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considered. The parties are advised that failure to file objections within the specified time may

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result in the waiver of the “right to challenge the magistrate’s factual findings” on

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appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838–39 (9th Cir. 2014) (citing Baxter v. Sullivan,

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

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IT IS SO ORDERED.
Dated:

/s/ Barbara A. McAuliffe

January 3, 2025

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UNITED STATES MAGISTRATE JUDGE

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