Dill v. Vallejo Police Department et al

Filing 7

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 6/8/2017 RECOMMENDING this action be dismissed without prejudice. Referred to Judge John A. Mendez. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TONY DILL, 12 13 14 No. 2:16-CV-0741-JAM-CMK-P Plaintiff, vs. FINDINGS AND RECOMMENDATIONS VALLEJO POLICE DEPARTMENT, et al., 15 Defendants. 16 / 17 18 19 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. 20 Pursuant to Eastern District of California Local Rule 183(b), any party appearing 21 pro se is required to keep the court informed as to his current address. Plaintiff has failed to do 22 so. On June 14, 2016, the court granted plaintiff in forma pauperis status and directed the Solano 23 County Sheriff’s Department to collect and forward filing fee payments. On September 19, 24 2016, the Solano County Sheriff’s Department filed notice with the court that it was unable to 25 collect and forward filing fee payments on behalf of plaintiff because he had been released for 26 time served on August 15, 2016. To date, plaintiff’s address-of record remains the Solano 1 1 County Jail. 2 The court must weigh five factors before imposing the harsh sanction of 3 dismissal. See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. 4 U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's 5 interest in expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) 6 the risk of prejudice to opposing parties; (4) the public policy favoring disposition of cases on 7 their merits; and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 8 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an 9 appropriate sanction is considered a less drastic alternative sufficient to satisfy the last factor. 10 See Malone, 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is 11 appropriate where there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 12 1423 (9th Cir. 1986). Dismissal has also been held to be an appropriate sanction for failure to 13 inform the district court and parties of a change of address pursuant to local rules. See Carey v. 14 King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (per curiam). 15 Having considered these factors, and in light of plaintiff’s failure to submit a 16 notice of change of address as required under Local Rule 183(b), the court finds that dismissal of 17 this action is appropriate. Specifically, plaintiff’s failure to keep the court informed as to his 18 current address thwarts the public’s interest in expeditious resolution of the case on the merits as 19 well as the court’s ability to manage it’s docket. Further, as time passes and evidence becomes 20 stale, plaintiff’s non-compliance creates an increasing risk of prejudice to the defendants. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 2 1 Based on the foregoing, the undersigned recommends that this action be 2 dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and 3 orders. 4 These findings and recommendations are submitted to the United States District 5 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 6 after being served with these findings and recommendations, any party may file written 7 objections with the court. Responses to objections shall be filed within 14 days after service of 8 objections. Failure to file objections within the specified time may waive the right to appeal. 9 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 10 11 12 13 DATED: June 8, 2017 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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