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Neuman v. Veal

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


October 5, 2009

CHARLES NEUMAN, PLAINTIFF,
v.
VEAL, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. On August 19, 2009, the court issued an order requiring Plaintiff to show cause in writing, within 30 days, why this action should not be dismissed for his failure to keep the court informed of his current address. No response has been received.

On July 13, 2009, Defendants filed a motion to compel discovery responses (Doc. 61). Plaintiff failed to file an opposition to the motion. In the motion, Defendants informed the court that Plaintiff had apparently been paroled, and had not informed the court or the Defendants of his new address.

As stated in the order to show cause, Local Rule 83-182(f) requires attorneys and parties proceeding pro se to keep the court and all other parties apprised of any change of address or telephone number. It also provides that "[a]bsent such notice, service of documents at the prior address of the attorney or party shall be fully effective." Local Rule 83-182(f). Plaintiff was also previously informed of this requirement by court order. (See Doc. 21).

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 comply with a local rule requiring pro se plaintiffs to keep the court appraised of their address at all times. 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 respond to the order to show cause, and his failure to keep the court apprised of his current 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 Plaintiff's failure to keep the court apprised of his current address and failure to comply with court rules and orders, and all pending motions 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 20 days after being served with these findings and recommendations, any party may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." 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).

20091005

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