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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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v.
STATE OF CALIFORNIA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

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For the Northern District of California

United States District Court

ORDER OF DISMISSAL

Plaintiff,

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No. C 11-00150 SBA (PR)

JEFF WEAVER,

Plaintiff filed the instant pro se civil rights complaint under 42 U.S.C. § 1983.

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On August 12, 2011, Northern District Judge Jeremy Fogel issued an Order permitting

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Plaintiff's former counsel, Richard Philip Sax, to withdraw appearance and granting a continuance to

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enable Plaintiff to retain new counsel.

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On September 28, 2011, this action was reassigned to the undersigned judge. The record

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shows that Attorney Sax has "lost contact with Plaintiff." (Sax Decl. ¶ 4.) To date, Plaintiff has

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never communicated directly with the Court because all his filings were made by Attorney Sax.

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Accordingly, in an Order dated November 7, 2011, the Court determined that it was in the interests

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of justice and judicial efficiency for the Court to establish Plaintiff's current address and whether he

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intended to continue to prosecute this action. The Court informed Plaintiff that if he failed to do so

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within thirty days, this action would be dismissed without prejudice for failure to prosecute. The

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Court directed the Clerk of the Court to (1) send a copy of its November 7, 2011 Order to Attorney

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Sax; and (2) contact Attorney Sax to obtain Plaintiff's last-known address. Clerk's Office staff

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indicates that Plaintiff's last-known address is 1911 Sierra Avenue, Napa, CA 94558. The Clerk also

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served Plaintiff with the November 7, 2011 Order at the aforementioned address. The Court notes

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that the Order mailed to Plaintiff was never returned as undeliverable.

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More than thirty days have passed, and Plaintiff has filed no response to the Court's

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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).

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The court should consider five factors before dismissing an action under Rule 41(b): (1) the public

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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

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public policy favoring the disposition of actions on their merits. See Malone v. United States Postal

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Serv., 833 F.2d 128, 130 (9th Cir. 1987).1 The first three factors, above, weigh in favor of dismissal

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in light of the fact that Plaintiff has lost contact with his attorney and has failed to respond to the

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Court's November 7, 2011 Order. The fourth factor also weighs in favor of dismissal because less

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drastic sanctions would have little impact in light of Plaintiff's apparent lack of interest in this case.

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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.

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United States District Court

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Although the fifth factor appears to weigh against dismissal, dismissal is appropriate in light of the

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other four factors. See Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002) (finding district

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court did not abuse its discretion in dismissing petition with prejudice where three of the five factors

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weighed in favor of dismissal).

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In light of the foregoing, this action is hereby DISMISSED for failure to prosecute, pursuant
to Federal Rule of Civil Procedure 41(b).

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The Clerk shall close the file and terminate any pending motions.

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IT IS SO ORDERED.

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DATED:

12/15/11
SAUNDRA BROWN ARMSTRONG
United States District Judge

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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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G:\PRO-SE\SBA\CR.11\Weaver0150.41(b)dismissal.wpd

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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JEFF WEAVER,
Case Number: CV11-00150 SBA
Plaintiff,

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For the Northern District of California

United States District Court

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CERTIFICATE OF SERVICE
v.
CA DEPT OF CORRECTIONS et al,
Defendant.

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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.

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Jeff Weaver AB-7048
1911 Sierra Avenue
Napa, CA 94558
Dated: December 20, 2011

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Richard W. Wieking, Clerk
By: LISA R CLARK, Deputy Clerk

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G:\PRO-SE\SBA\CR.11\Weaver0150.41(b)dismissal.wpd

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