Lewis et al v. Gardiner, et al

Filing 12

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 10/10/12 RECOMMENDING that this action be dismissed. Referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Dillon, M)

Download PDF
1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 DAVID K. LEWIS, et al, 10 Plaintiffs, 11 12 No. 2-12-cv-0986 JAM EFB P vs. GARDINER, et al., Defendants. 13 FINDINGS AND RECOMMENDATIONS / 14 15 On April 13, 2012, plaintiff David Lewis, a state prisoner proceeding without counsel, 16 filed this civil rights action.1 On June 29, 2012, the United States Postal Service returned mail 17 addressed to plaintiff as undeliverable, with the notation, “Deceased.” 18 A district court must “weigh five factors to determine whether to dismiss a case for lack 19 of prosecution: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s 20 need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 21 favoring the disposition of cases on their merits; and (5) the availability of less drastic 22 sanctions.” In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994); accord, Southwest Marine Inc. v. 23 Danzig, 217 F.3d 1128, 1138 (9th Cir. 2000). 24 25 26 1 Plaintiff initially filed this action with two other plaintiffs. Dckt. No. 1. On August 28, 2012, however, the court denied the plaintiffs’ request for permissive joinder and for class certification and dismissed the additional plaintiffs. Dckt. No. 11. 1 1 A party appearing without counsel must keep the court and all parties apprised of his 2 current address. L.R. 183(b). If mail directed to such a plaintiff is returned by the postal service 3 and plaintiff fails to notify the court and opposing parties within 63 days thereafter of his current 4 address, the court may dismiss the action without prejudice for failure to prosecute. Id. More 5 than 63 days have passed since the postal service returned the mail and plaintiff has not notified 6 the court of his current address. 7 In light of plaintiff’s apparent death, it is impossible for him to prosecute this action. The 8 court has considered whether to appoint counsel to represent plaintiff’s estate, but finds there are 9 no exceptional circumstances for doing so in this case. See 28 U.S.C. § 1915(e)(1); Terrell v. 10 Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 11 (9th Cir. 1990); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Moreover, the public’s 12 interest in expeditiously resolving this litigation and the court’s need to manage its docket weigh 13 in favor of dismissal. Here, less drastic alternatives are not available and this action must 14 therefore be dismissed. 15 16 Accordingly, it is hereby RECOMMENDED that this action be dismissed. See Fed. R. Civ. P. 41(b); L. R. 110, 183(b). 17 These findings and recommendations are submitted to the United States District Judge 18 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 19 after being served with these findings and recommendations, any party may file written 20 objections with the court and serve a copy on all parties. Such a document should be captioned 21 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 22 within the specified time may waive the right to appeal the District Court’s order. Turner v. 23 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 24 Dated: October 10, 2012. 25 26 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?