Weaver v. State of California Department of Coreections et al

Filing 27

ORDER DISMISSING CASE. Signed by Judge ARMSTRONG on 12/15/11. (lrc, COURT STAFF) (Filed on 12/20/2011)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 8 9 v. STATE OF CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., Defendants. 10 / 11 For the Northern District of California United States District Court ORDER OF DISMISSAL Plaintiff, 6 7 No. C 11-00150 SBA (PR) JEFF WEAVER, Plaintiff filed the instant pro se civil rights complaint under 42 U.S.C. § 1983. 12 On August 12, 2011, Northern District Judge Jeremy Fogel issued an Order permitting 13 Plaintiff's former counsel, Richard Philip Sax, to withdraw appearance and granting a continuance to 14 enable Plaintiff to retain new counsel. 15 On September 28, 2011, this action was reassigned to the undersigned judge. The record 16 shows that Attorney Sax has "lost contact with Plaintiff." (Sax Decl. ¶ 4.) To date, Plaintiff has 17 never communicated directly with the Court because all his filings were made by Attorney Sax. 18 Accordingly, in an Order dated November 7, 2011, the Court determined that it was in the interests 19 of justice and judicial efficiency for the Court to establish Plaintiff's current address and whether he 20 intended to continue to prosecute this action. The Court informed Plaintiff that if he failed to do so 21 within thirty days, this action would be dismissed without prejudice for failure to prosecute. The 22 Court directed the Clerk of the Court to (1) send a copy of its November 7, 2011 Order to Attorney 23 Sax; and (2) contact Attorney Sax to obtain Plaintiff's last-known address. Clerk's Office staff 24 indicates that Plaintiff's last-known address is 1911 Sierra Avenue, Napa, CA 94558. The Clerk also 25 served Plaintiff with the November 7, 2011 Order at the aforementioned address. The Court notes 26 that the Order mailed to Plaintiff was never returned as undeliverable. 27 More than thirty days have passed, and Plaintiff has filed no response to the Court's 28 November 7, 2011 Order. A district court may sua sponte dismiss an action for failure to prosecute Wabash R.R., 370 U.S. 626, 633 (1962); McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991). 3 The court should consider five factors before dismissing an action under Rule 41(b): (1) the public 4 interest in the expeditious resolution of the litigation: (2) the court's need to manage its docket; 5 (3) the risk of prejudice to the defendants; (4) the availability of less drastic sanctions; and (5) the 6 public policy favoring the disposition of actions on their merits. See Malone v. United States Postal 7 Serv., 833 F.2d 128, 130 (9th Cir. 1987).1 The first three factors, above, weigh in favor of dismissal 8 in light of the fact that Plaintiff has lost contact with his attorney and has failed to respond to the 9 Court's November 7, 2011 Order. The fourth factor also weighs in favor of dismissal because less 10 drastic sanctions would have little impact in light of Plaintiff's apparent lack of interest in this case. 11 For the Northern District of California or to comply with a court order pursuant to Federal Rule of Civil Procedure 41(b). See Link v. 2 United States District Court 1 Although the fifth factor appears to weigh against dismissal, dismissal is appropriate in light of the 12 other four factors. See Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002) (finding district 13 court did not abuse its discretion in dismissing petition with prejudice where three of the five factors 14 weighed in favor of dismissal). 15 16 In light of the foregoing, this action is hereby DISMISSED for failure to prosecute, pursuant to Federal Rule of Civil Procedure 41(b). 17 The Clerk shall close the file and terminate any pending motions. 18 IT IS SO ORDERED. 19 DATED: 12/15/11 SAUNDRA BROWN ARMSTRONG United States District Judge 20 21 22 23 24 25 26 27 1 The court should also afford the litigant prior notice of its intention to dismiss, id. at 133, as this Court has done. 28 G:\PRO-SE\SBA\CR.11\Weaver0150.41(b)dismissal.wpd 2 1 2 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 JEFF WEAVER, Case Number: CV11-00150 SBA Plaintiff, 5 6 7 8 9 11 For the Northern District of California United States District Court 10 12 CERTIFICATE OF SERVICE v. CA DEPT OF CORRECTIONS et al, Defendant. / 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 December 20, 2011, 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. 13 14 15 16 17 Jeff Weaver AB-7048 1911 Sierra Avenue Napa, CA 94558 Dated: December 20, 2011 18 Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk 19 20 21 22 23 24 25 26 27 28 G:\PRO-SE\SBA\CR.11\Weaver0150.41(b)dismissal.wpd 3

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