(PC) Ausborn v. California Health Care Facility et al
FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 2/17/2021 RECOMMENDING that this action be Dismissed without prejudice for lack of prosecution and failure to comply with court rules and orders and that all pending Motions be Denied as Moot. Referred to Judge John A. Mendez. Objections due within 14 days after being served with these findings and recommendations.(Coll, A)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
FINDINGS AND RECOMMENDATIONS
CALIFORNIA HEALTH CARE
FACILTY, et al.,
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to
42 U.S.C. § 1983. On November 13, 2020, mail directed to Plaintiff was returned by the United
States Postal Service as undeliverable. Pursuant to Eastern District of California Local Rule
183(b), any party appearing pro se must file and serve a notice of change of address within 63
days of mail being returned. To date, more than 63 days have elapsed since mail was returned
and Plaintiff has not notified the Court of a change of address.
The Court must weigh five factors before imposing the harsh sanction of dismissal.
See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. U.S. Postal
Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's interest in
expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) the risk of
prejudice to opposing parties; (4) the public policy favoring disposition of cases on their merits;
and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 46 F.3d 52,
53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an appropriate
sanction is considered a less drastic alternative sufficient to satisfy the last factor. See Malone,
833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is appropriate where
there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.
1986). Dismissal has also been held to be an appropriate sanction for failure to inform the district
court and parties of a change of address pursuant to local rules. See Carey v. King, 856 F.2d
1439, 1440-41 (9th Cir. 1988) (per curiam).
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 this action be dismissed,
without prejudice, for lack of prosecution and failure to comply with court rules and orders, and
that all pending motions, ECF Nos. 8 and 11, be denied as moot.
These findings and recommendations are submitted to the United States District
Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days
after being served with these findings and recommendations, any party may file written
objections with the court. Responses to objections shall be filed within 14 days after service of
objections. Failure to file objections within the specified time may waive the right to appeal. See
Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
Dated: February 17, 2021
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE
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