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Damon Keith Gaddy v. Mike Mcdonald

November 9, 2011

DAMON KEITH GADDY,
PETITIONER,
v.
MIKE MCDONALD, WARDEN,
RESPONDENT.



The opinion of the court was delivered by: Suzanne H. Segal United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

I. INTRODUCTION

On September 19, 2011, Damon Keith Gaddy ("Petitioner"), then a*fn1 California State prisoner proceeding pro se, constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody (the "Petition") pursuant to 28 U.S.C. § 2254. On October 5, 2011, the Clerk of Court issued a Notice of Reference to a United States Magistrate Judge (the "Notice of Reference"). The Notice of Reference was mailed to the High Desert State Prison, which was Petitioner's address of record at the time. On October 12, 2011, Petitioner filed a Notice of Change of Address informing the Court of his new mailing address at a private residence in Chino Hills, California.

On October 14, 2011, the Court issued an "Order To Show Cause Why This Action Should Not Be Dismissed As Untimely" (the "Untimeliness Order") because the Petition appeared to be untimely on its face. The Untimeliness Order was mailed to Petitioner's new address at the private residence in Chino Hills, California. Petitioner was required to file a response by October 28, 2011 if he wished to contest the dismissal of this action. (Untimeliness Order at 6). Petitioner failed to file a response to the Untimeliness Order.

On October 17, 2011, the Court received the Notice of Reference returned from Petitioner's original address at the High Desert State Prison. Similarly, on October 20, 2011, the Court received the Untimeliness Order returned from Petitioner's new address at the private residence in Chino, Hills, California. Thus, on October 24, 2011, the Court issued an Order To Show Cause Why This Action Should Not Be Dismissed For Failure To Provide A Current Address (the "Address Order"). The Address Order was mailed to Petitioner's new address at the private residence in Chino Hills, California. Pursuant to Central District Local Rule 41-6, Petitioner was required to provide the Court with a current address by November 8, 2011. (Address Order at 2). However, on October 31, 2011, the Court received the Address Order returned from Petitioner's new address at the private residence in Chino, Hills, California. As of today, Petitioner has failed to respond to any of the Court's orders and has failed to provide a current address.

Petitioner has consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the*fn2 reasons discussed below, the Court DISMISSES THIS ACTION WITH PREJUDICE pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute and failure to comply with Court orders.

II.

DISCUSSION

Federal Rule of Civil Procedure 41(b) grants district courts the authority to sua sponte dismiss actions for failure to prosecute or for failure to comply with court orders. See Link v. Wabash R.R., 370 U.S. 626, 629-31, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962) ("The power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts."). Dismissal, however, is a harsh penalty and is to be imposed only in extreme circumstances. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986).

In considering whether to dismiss an action for failure to prosecute, the Court must weigh five factors: "(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits." Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002).

A. The Five Factors Support Dismissal

1. Expeditious Resolution And The Court's Need To Manage Its Docket

In the instant action, the first two factors-the public's interest in expeditious resolution of litigation and the Court's need to manage its docket-favor dismissal. The Court mailed the Notice of Reference, the Untimeliness Order, and the Address Order to Petitioner's current address of record. However, all of these documents were returned to the Court unopened. Petitioner's failure to provide the Court with a current address hinders the Court's ability to move this case toward disposition and ...


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