Laucella v. Haviland
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Charlene H. Sorrentino on 6/16/11 RECOMMENDING that 1 Petition be dismissed for petitioner's failure to prosecute and failure to keep the court apprised of his current address. Referred to Judge Kimberly J. Mueller; objections due 21 days after being served with these findings and recommendations. (Meuleman, A)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ROBERT LAUCELLA,
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Petitioner,
No. CIV S-09-2123 KJM CHS
vs.
D.K. SISTO,
Respondents.
FINDINGS AND RECOMMENDATIONS
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Petitioner Robert Laucella proceeds pro se with a petition for writ of habeas
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corpus pursuant to 28 U.S.C. §2254. Petitioner challenges the state prison’s adjudication of a
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2008 prison disciplinary rule violation as a violation of his right to due process.
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On January 21, 2011, an order reassigning this case to the undersigned for further
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proceedings was returned as undeliverable. On February 17, 2011, another of the court’s
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reassignment orders was returned as undeliverable. Pursuant to Local Rule 182(f), service of the
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above orders to petitioner’s address of record is considered fully effective. It appears that
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petitioner has failed to comply with Local Rule 182(f) and Local Rule 183(b), under both of
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which he has a continuing obligation to inform the court of any change of address. Local Rule
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183(b) specifically provides for dismissal of an action without prejudice for failure to prosecute
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if mail directed to a prosecuting party in propria persona is returned by the U.S. Postal Service,
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and the party fails to notify the court and opposing parties within 63 days thereafter of a current
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address.
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In addition, this court has the authority to dismiss an action for noncompliance
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with any Local Rules or any order of the court. Local Rule 110, effective February 8, 2011; see
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also Oliva v. Sullivan, 958 F.2d 272, 273 (9th Cir. 1992) (“District courts have inherent power to
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control their dockets and may impose sanctions, including dismissal, in the exercise of that
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discretion.”); Ash v. Cvetkov, 739 F.2d 493, 496 (9th cir. 1984) (“It is within the inherent power
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of the court to sua sponte dismiss a case for lack of prosecution.”).
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In exercising discretion to dismiss a case as a sanction, a district court should
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consider: (1) the public’s interest in expeditious resolution of cases; (2) the court’s need to
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manage its docket; (3) the risk of prejudice to the other party; (4) the public policy favoring
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disposition of cases on the merits; and (5) the availability of less drastic alternatives. Yourish v.
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California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). Here, consideration of these factors
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weighs in favor of dismissing the petition for his failure to prosecute. It appears that there is no
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less drastic sanction available. See Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988) (“[a]n
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order to show cause why dismissal is not warranted or an order imposing sanctions would only
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find itself taking a round trip tour through the United States mail.”)
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Based on the foregoing, IT IS HEREBY RECOMMENDED that this action be
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dismissed for petitioner’s failure to prosecute and failure to keep the court apprised of his current
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address.
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-
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one days after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections
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shall be served and filed within seven days after service of the objections. Failure to file
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objections within the specified time may waive the right to appeal the District Court’s order.
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Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir.
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1991).
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DATED: June 16, 2011
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CHARLENE H. SORRENTINO
UNITED STATES MAGISTRATE JUDGE
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