United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DISMISS ACTION FOR
FAILURE TO PROSECUTE BASED ON FAILURE TO PROVIDE A CURRENT
MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE.
is a former state prisoner proceeding pro se with a petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
He initiated this action on June 2, 2016, with a petition
stating that he was incarcerated at the California Healthcare
Facility. (ECF No. 1.) He challenged the May 19, 2014
judgment of the Merced County Superior Court, sentencing him
to a five-year term for possession of a controlled substance
with a firearm.
6, 2016, the Court ordered Respondent to respond to the
petition. (ECF No. 5.) On August 2, 2016, Respondent sought
an extension of time. (ECF No. 13.) Respondent's motion
was granted, and the Court's order was sent to Petitioner
at his address of record. (ECF No. 14.) On August 19, 2016,
the Court's order was returned as undeliverable.
Respondent proceeded to file an answer. (ECF No. 15.)
Petitioner filed no traverse. The petition is pending review
on the merits.
Rule 183(b) requires a party proceeding pro se to keep the
Court apprised of his 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
Court has authority to dismiss an action for failure to
prosecute and failure to follow court rules. Local Rule 110
provides that “failure of counsel or of a party to
comply with these Rules or with any order of the Court may be
grounds for imposition by the Court of any and all sanctions
. . . within the inherent power of the Court.” District
courts have the inherent power to control their dockets and
“in the exercise of that power, they may impose
sanctions including, where appropriate, default or
dismissal.” Thompson v. Housing Auth., 782
F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action
based on a party's failure to prosecute, failure to obey
a court order, or failure to comply with local rules.
See, e.g., Ghazali v. Moran, 46 F.3d 52,
53-54 (9th Cir. 1995) (dismissal for noncompliance with local
rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61
(9th Cir. 1992) (dismissal for failure to comply with an
order requiring amendment of a complaint); Carey v.
King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal
for failure to comply with local rule requiring pro se
plaintiffs to keep court apprised of address); Malone v.
U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987)
(dismissal for failure to comply with a court order);
Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir.
1986) (dismissal for lack of prosecution and failure to
comply with local rules).
determining whether to dismiss an action on this basis, the
Court must consider 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 alternatives. Thompson,
782 F.2d at 831; Henderson, 779 F.2d at 1423-24;
Malone, 833 F.2d at 130; Ferdik, 963 F.2d
at 1260-61; Ghazali, 46 F.3d at 53.
more than one year has passed since Petitioner's mail was
returned, and Petitioner has not notified the Court of his
new address. A review of the California Department of
Corrections and Rehabilitation (“CDCR”) Inmate
Locator reflects that Petitioner is no longer in CDCR
custody. There is no question that he is violation of Court
rules and has failed to prosecute this action. Additionally,
because the petition has been pending for a lengthy period,
the Court finds that the public's interest in
expeditiously resolving this litigation and the Court's
interest in managing the docket weigh in favor of dismissal.
The third factor, risk of prejudice to respondents, also
weighs in favor of dismissal, since a presumption of injury
arises from the occurrence of unreasonable delay in
prosecuting an action. Anderson v. Air West, 542
F.2d 522, 524 (9th Cir. 1976). The fourth factor-public
policy favoring disposition of cases on their merits-is
greatly outweighed by the factors in favor of dismissal
discussed herein. Finally, the Court finds no less drastic
alternative available. See Ferdik v. Bonzelet, 963
F.2d at 1262; Malone, 833 at 132-33;
Henderson, 779 F.2d at 1424. Petitioner was
expressly informed of the requirement to apprise the Court of
his current address (ECF No. 3), but failed to do so. Because
of this failure, it is not possible for the Court to
communicate with Petitioner or to explore any alternatives
short of dismissal of the case.
it is HEREBY RECOMMENDED that the action be dismissed without
prejudice for failure to prosecute based on petitioner's
failure to provide a current address. The Clerk of Court is
directed to close the case.
findings and recommendation are submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within
fourteen (14) days after being served with
the findings and recommendation, any party may file written
objections with the Court and serve a copy on all parties.
Such a document should be captioned “Objections to
Magistrate Judge's Findings and Recommendation.”
Any reply to the objections shall be served and filed within
fourteen (14) days after service of the objections. The
parties are advised that failure to file objections within
the specified ...