United States District Court, E.D. California
ORDER DISMISSING ACTION WITHOUT PREJUDICE FOR FAILURE
TO PROSECUTE AND FOR VIOLATION OF LOCAL RULES AND ORDER ON
DEFENDANTS' SUMMARY JUDGMENT MOTION (DOC. NO.
Muihaymin Shabazz Muhammad is a federal prisoner proceeding
pro se and in forma pauperis in this action pursuant to
Bivens v. Six Unknown Named Agents, 403 U.S. 388
January 17, 2017, Defendants Copenhaver, Ciufo, and
Overstreet filed a motion for summary judgment pursuant to
Federal Rule of Civil Procedure 56. (Doc. No. 18.) On
February 10, 2017, Plaintiff filed a response to the motion
for summary judgment. (Doc. No. 19.)
February 16, 2017, Defendants objected to Plaintiff's
response to their motion for summary judgment. (Doc. No. 21.)
Defendants noted that Plaintiff's response was unsigned,
filed late, and was filed without any proof of service.
(Id. at 1.) Defendants requested the response be
stricken. Further, Defendants requested that if Plaintiff was
given an opportunity to correct the filing, they be permitted
time to file a reply brief. (Id.)
February 17, 2017, the Court ordered Plaintiff's unsigned
response to the motion for summary judgment stricken from the
record, and permitted Plaintiff thirty days to file a signed
opposition or statement of non-opposition to the motion for
summary judgment from the date of service of that order.
(Doc. No. 22.) The Court's February 17, 2017 order was
served by mail on Plaintiff at his address of record.
February 27, 2017, Plaintiff filed a notice stating that he
was being transferred to another institution. (Doc. No. 23.)
Plaintiff indicated that he felt the transfer was
retaliatory, and that he planned to file an action related to
certain alleged destruction of property. (Id. at
1-2.) The notice did not indicate Plaintiff's new mailing
address, nor was there any proof of service.
March 13, 2017, the Court's February 17, 2017 order was
returned by the United States Postal Service as
“undeliverable, not deliverable as addressed, unable to
forward.” As of the date of this order, Plaintiff has
not provided any updated mailing address to the Court, or
otherwise communicated with the Court.
is required to keep the Court apprised of his current address
at all times. Local Rule 183(b) provides:
Address Changes. A party appearing in propria
persona shall keep the Court and opposing parties
advised as to his or her current address. If mail directed to
a plaintiff in propria persona by the Clerk is
returned by the U.S. Postal Service, and if such plaintiff
fails to notify the Court and opposing parties within
sixty-three (63) days thereafter of a current address, the
Court may dismiss the action without prejudice for failure to
In this Court's first informational order issued April
14, 2016, Plaintiff was expressly warned of this requirement,
and that his case would be dismissed for failure to prosecute
if he did not timely update his address. (Doc. No. 2 at p.
5.) Federal Rule of Civil Procedure 41(b) also provides for
dismissal of an action for failure to
case, Plaintiff's address change was due no later than
May 22, 2017. Nevertheless, Plaintiff has failed to file any
change of address form. Although Plaintiff filed a notice of
being transferred on February 27, 2017, he did not provide
any updated mailing address and has not since been in contact
with the Court. Furthermore, Defendants' motion for
summary judgment has now been pending for over four months
without any response from Plaintiff.
determining whether to dismiss an action for lack of
prosecution, the district court is required to weigh several
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 the defendants; (4)
the public policy favoring disposition of cases on their
merits; and (5) the availability of less drastic
sanctions.” Carey v. King, 856 F.2d 1439, 1440
(9th Cir. 1988) (internal quotation marks and citation
omitted); accord Omstead v. Dell Inc., 594 F.3d
1081, 1084 (9th Cir. 2010); In re Phenylpropanolamine
(PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir.
2006). These factors guide a court in deciding what to do,
and are not conditions that must be met in order for a court
to take action. In re PPA, 460 F.3d at 1226
failure to comply with this Court's rules, the
expeditious resolution of litigation and the Court's need
to manage its docket weigh in favor of dismissal.
Id. at 1227. More importantly, given the Court's
apparent inability to communicate with Plaintiff, there are
no other reasonable alternatives available to address
Plaintiffs failure to prosecute this action and his failure
to apprise the Court of his current address. In re
PPA, 460 F.3d at 1228-29; Carey, 856 F.2d ...