Hernandez v. Thomas

Filing 58

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 06/05/19 RECOMMENDING that defendant's unopposed motion to dismiss 56 be granted. MOTION to DISMISS 56 referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

ANTHONY HERNANDEZ,

12
13
14
15

No. 2:17-CV-1803-KJM-DMC-P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

THOMAS,
Defendant.

16
17

Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

18

42 U.S.C. § 1983. Pending before the court is defendant’s unopposed motion to dismiss for

19

failure to inform the court of a change of address (ECF No. 56).

20

On March 12, 2019, mail directed to plaintiff was returned by the United States

21

Postal Service as undeliverable. Pursuant to Eastern District of California Local Rule 183(b), any

22

party appearing pro se must file and serve a notice of change of address within 63 days of mail

23

being returned. To date, more than 63 days have elapsed since mail was returned and plaintiff has

24

not notified the court of a change of address.

25

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

26

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

27

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

28

expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) the risk of
1

1

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

2

and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 46 F.3d 52,

3

53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an appropriate

4

sanction is considered a less drastic alternative sufficient to satisfy the last factor. See Malone,

5

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

6

there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.

7

1986). Dismissal has also been held to be an appropriate sanction for failure to inform the district

8

court and parties of a change of address pursuant to local rules. See Carey v. King, 856 F.2d

9

1439, 1440-41 (9th Cir. 1988) (per curiam).

10
11
12
13

Having considered these factors, and in light of plaintiff’s failure to submit a
notice of change of address, the court finds that dismissal of this action is appropriate.
Based on the foregoing, the undersigned recommends that defendant’s unopposed
motion to dismiss (ECF No. 56) be granted.

14

These findings and recommendations are submitted to the United States District

15

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

16

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

17

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

18

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

19

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

20
21
22

Dated: June 5, 2019
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

23
24
25
26
27
28
2