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Trotter v. Pfeiffer

United States District Court, E.D. California

October 31, 2019

JAMES TROTTER, Plaintiff,
v.
WARDEN PFEIFFER, et al., Defendants.

          ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO ACTION, FINDINGS AND RECOMMENDATION REGARDING DISMISSAL OF ACTION FOR FAILURE TO PROSECUTE

          BARBARA A. McAULIFFE UNITED STATES MAGISTRATE JUDGE.

         I. Background

         Plaintiff 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.

         On 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.)

         On 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.

         II. Discussion

         Plaintiff 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.

         Federal Rule of Civil Procedure 41(b) also provides for dismissal of an action for failure to prosecute.[1]

         According 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.

         “In 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 (citation omitted).

         Here, 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 action.

         III. Order and Recommendation

         Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a ...


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