Dukes v. Miller et al

Filing 10

ORDER DISMISSING CASE for failure to prosecute. All pending motions are TERMINATED. Signed by Judge Saundra Brown Armstrong, on 10/7/09. (lrc, COURT STAFF) (Filed on 10/8/2009) Modified on 10/9/2009 (jlm, COURT STAFF).

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. MELVIN DUKES, Plaintiff,

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA No. C 09-02620 SBA (PR) ORDER OF DISMISSAL

CORRECTIONAL COUNSELOR D. MILLER, et al., Defendants. /

Plaintiff, a state prisoner, filed this pro se civil rights action under 42 U.S.C. § 1983 in the United States District Court for the Eastern District of California. In an Order dated June 9, 2009, the Honorable Gregory G. Hallows of the Eastern District ordered it transferred to this Court on venue grounds. On June 12, 2009, the instant case was received by this Court. On that same date, the Clerk of the Court sent Plaintiff a notice that this case had been transferred to this Court. The Clerk's notice was returned as undeliverable with a notation: "Return to Sender -- Inmate Refused." In an Order dated September 4, 2009, the Court directed Plaintiff to inform the Court of his continued intent to prosecute this action. The Court informed Plaintiff that if he failed to do so within thirty days, this action would be dismissed without prejudice for failure to prosecute. The Order was sent to Plaintiff at his last known address, Salinas Valley State Prison, and it was returned as undeliverable with a notation: "Return to Sender -- Inmate Refused." More than thirty days have passed, and Plaintiff has filed no response to the Court's September 4, 2009 Order. He has failed to communicate with the Court since this case has been transferred to this district. A district court may sua sponte dismiss an action for failure to prosecute or to comply with a court order pursuant to Federal Rule of Civil Procedure 41(b). See Link v. Wabash R.R., 370 U.S. 626, 633 (1962); McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991). The court should consider five factors before dismissing an action under Rule 41(b): (1) the public interest in the expeditious resolution of the litigation: (2) the court's need to manage its docket;

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(3) the risk of prejudice to the defendants; (4) the availability of less drastic sanctions; and (5) the public policy favoring the disposition of actions on their merits. See Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987).1 The first three factors, above, weigh in favor of dismissal in light of the fact that Plaintiff has not pursued this matter since it has been transferred to this district. In addition, he has refused one notice from the Clerk and failed to respond to the Court's September 4, 2009 Order. The fourth factor also weighs in favor of dismissal because less drastic sanctions would have little impact in light of Plaintiff's apparent lack of interest in this case. Although the fifth factor appears to weigh against dismissal, dismissal is appropriate in light of the other four factors. See Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002) (finding district court did not abuse its discretion in dismissing petition with prejudice where three of the five factors weighed in favor of dismissal). In light of the foregoing, this action is hereby DISMISSED for failure to prosecute, pursuant to Federal Rule of Civil Procedure 41(b). The Clerk of the Court shall close the file and terminate any pending motions. IT IS SO ORDERED. DATED: 10/7/09 SAUNDRA BROWN ARMSTRONG United States District Judge

The court should also afford the litigant prior notice of its intention to dismiss, id. at 133, as this Court has done.
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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA MELVIN DUKES, Plaintiff, v. D MILLER et al, Defendant. /

Case Number: CV09-02620 SBA CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on October 8, 2009, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Melvin Dukes D-33572 Salinas Valley State Prison (1050) P.O. Box 1050 Soledad, CA 93960-1050 Dated: October 8, 2009 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk

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