United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF
ACTION FOR FAILURE TO PROSECUTE
BARBARA A. McAULIFFE UNITED STATES MAGISTRATE JUDGE
Omar Cabrera (“Plaintiff”), a state prisoner
proceeding pro se, filed this action on August 30, 2019.
(Doc. No. 1.) On October 10, 2019, the Court issued an order
granting Plaintiff's application to proceed in forma
paupers. (Doc. No. 3.) On October 29, 2019, the Court's
order was returned as undeliverable. To date, Plaintiff has
not filed a notice of change of address 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 the Court's docket, Plaintiff's address change was
due no later than December 31, 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
expeditious resolution of litigation and the Court's need
to manage its docket weigh in favor of dismissal. In re
PPA, 460 F.3d 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
Conclusion and Recommendation
on the foregoing, the Court HEREBY RECOMMENDS that this
action be dismissed, without prejudice, based on
Plaintiff's failure to prosecute. Fed.R.Civ.P. 41(b);
Local Rule 183(b).
Findings and Recommendations will be submitted to the United
States District Judge assigned to the case, under the
provisions of 28 U.S.C. § 636(b)(1). Within
fourteen (14) days after being served with
these Findings and Recommendations, Plaintiff may file
written objections with the Court. The document should be
captioned “Objections to Magistrate Judge's
Findings and Recommendations.” Plaintiff is advised
that failure to file objections within the specified time may
result in the waiver of the “right to challenge the
magistrate's factual findings” on appeal.
Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.
2014) (citing Baxter v. Sullivan, 923 F.2d 1391,
1394 (9th Cir. 1991)).