United States District Court, E.D. California
ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN
DISTRICT JUDGE TO ACTION, FINDINGS AND RECOMMENDATION
REGARDING DISMISSAL OF ACTION FOR FAILURE TO
BARBARA A. McAULIFFE UNITED STATES MAGISTRATE JUDGE.
James Trotter is a state prisoner proceeding pro se
and in forma pauperis in this civil rights action
pursuant to 42 U.S.C. § 1983. This matter was referred
to a United States Magistrate Judge pursuant to 28 U.S.C.
§ 636(b)(1)(B) and Local Rule 302.
August 1, 2019, the Court issued an order denying
Plaintiff's motion for new trial, review of evidence,
immediate release, restoration of bail, and appointment of
counsel. (ECF No. 41.) On August 9, 2019, the Court issued
another order denying second of Plaintiff's motions for
new trial, review of evidence, resentencing, and appointment
of counsel. (ECF No. 43.) On August 13, 2019, the Court
issued an order granting Plaintiff's motion for an
extension of time to file a second amended complaint and
denying, without prejudice, Plaintiff's motion for
appointment of counsel. (ECF No. 46.)
August 22, 2019, the Court's August 1, 2019 order was
returned as “Undeliverable, Inmate Refused.”
Also, on August 22, 2019, the Court's August 9, 2019
order was returned as “Undeliverable, Refused.”
On September 9, 2019, the Court's August 13, 2019 order
was returned as “Undeliverable, Unable to
Forward.” Plaintiff has not filed a notice of change of
address, filed a second amended complaint, 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 prosecute.
Rule of Civil Procedure 41(b) also provides for dismissal of
an action for failure to prosecute.
to Local Rule 183(b), Plaintiff's address change was due
no later than October 24, 2019. Plaintiff has failed to file
a change of address and he has not otherwise been in contact
with the Court.
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) Products Liability Litigation, 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
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
Plaintiff's failure to prosecute this action and his
failure to apprise the Court of his current address.
Id. at 1228-29; Carey, 856 F.2d at 1441.
The Court will therefore recommend that this action be
dismissed based on Plaintiff's failure to prosecute this
Order and Recommendation
the Court HEREBY ORDERS the Clerk of the Court to randomly
assign a ...