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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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TONY DILL,

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No. 2:16-CV-0741-JAM-CMK-P
Plaintiff,

vs.

FINDINGS AND RECOMMENDATIONS

VALLEJO POLICE DEPARTMENT,
et al.,

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Defendants.
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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983.

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Pursuant to Eastern District of California Local Rule 183(b), any party appearing

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pro se is required to keep the court informed as to his current address. Plaintiff has failed to do

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so. On June 14, 2016, the court granted plaintiff in forma pauperis status and directed the Solano

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County Sheriff’s Department to collect and forward filing fee payments. On September 19,

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2016, the Solano County Sheriff’s Department filed notice with the court that it was unable to

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collect and forward filing fee payments on behalf of plaintiff because he had been released for

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time served on August 15, 2016. To date, plaintiff’s address-of record remains the Solano
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County Jail.

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The court must weigh five factors before imposing the harsh sanction of

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dismissal. See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v.

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U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's

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interest in expeditious resolution of litigation; (2) the court's need to manage its own docket; (3)

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the risk of prejudice to opposing parties; (4) the public policy favoring disposition of cases on

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their merits; and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran,

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46 F.3d 52, 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an

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appropriate sanction is considered a less drastic alternative sufficient to satisfy the last factor.

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See Malone, 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is

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appropriate where there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421,

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1423 (9th Cir. 1986). Dismissal has also been held to be an appropriate sanction for failure to

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inform the district court and parties of a change of address pursuant to local rules. See Carey v.

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King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (per curiam).

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Having considered these factors, and in light of plaintiff’s failure to submit a

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notice of change of address as required under Local Rule 183(b), the court finds that dismissal of

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this action is appropriate. Specifically, plaintiff’s failure to keep the court informed as to his

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current address thwarts the public’s interest in expeditious resolution of the case on the merits as

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well as the court’s ability to manage it’s docket. Further, as time passes and evidence becomes

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stale, plaintiff’s non-compliance creates an increasing risk of prejudice to the defendants.

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Based on the foregoing, the undersigned recommends that this action be

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dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and

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orders.

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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)(l). Within 14 days

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after being served with these findings and recommendations, any party may file written

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objections with the court. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal.

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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: June 8, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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