(PC) Martin v. Gutierrez

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JARED ANDREW MARTIN, Case No. 1:22-cv-00600-ADA-BAM (PC) 12 Plaintiff, ORDER RELIEVING DEFENDANT OF OBLIGATION TO FILE FURTHER STATUS 13 v. REPORTS 14 GUTIERREZ, et al., FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION FOR 15 Defendants. FAILURE TO PROSECUTE 16 FOURTEEN (14) DAY DEADLINE 17 18 I. Background 19 Plaintiff Jared Andrew Martin (“Plaintiff”) is a county jail inmate and former state 20 prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. 21 § 1983. This action proceeds against Defendant Gutierrez for excessive force in violation of the 22 Eighth Amendment. 23 On April 10, 2023, the Court granted Defendant’s motion to stay this civil action pending 24 resolution of a state criminal proceeding against Plaintiff, and directing Defendant to file a status 25 report in thirty days and every ninety days thereafter. (ECF No. 33.) On April 24, 2023, the 26 Court’s order staying the case was returned as “Undeliverable, Not in Custody.” Plaintiff’s notice 27 of change of address was therefore due on or before June 26, 2023. Local Rule 183(b). 28 On May 10, 2023, Defendant filed a status report indicating that Plaintiff’s criminal 1 proceedings were currently pending appeal in the Fifth District of the California Court of Appeal. 2 (ECF No. 34.) The status report was served on Plaintiff at the same address indicating on the 3 Court’s docket, and no other information regarding Plaintiff’s custody status was provided. 4 Plaintiff has not filed a notice of change of address or otherwise communicated with the 5 Court. The Court further notes that Defendant’s second status report was due August 8, 2023. 6 Although none was filed, in light of Plaintiff’s failure to update his address, the Court finds it 7 appropriate to relieve Defendant of the obligation to file further status reports unless so ordered 8 by the Court. 9 II. Discussion 10 Plaintiff is required to keep the Court apprised of his current address at all times. Local 11 Rule 183(b) provides:

12 Address Changes. A party appearing in propria persona shall keep the Court and 13 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 14 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 15 prejudice for failure to prosecute. 16 Federal Rule of Civil Procedure 41(b) also provides for dismissal of an action for failure to 17 prosecute.1 18 Plaintiff’s address change was due no later than June 26, 2023. Plaintiff has failed to file 19 a change of address and he has not otherwise been in contact with the Court. “In determining 20 whether to dismiss an action for lack of prosecution, the district court is required to weigh several 21 factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 22 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 23 disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Carey v. 24 King, 856 F.2d 1439, 1440 (9th Cir. 1988) (internal quotation marks and citation omitted); accord 25 Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010); In re Phenylpropanolamine (PPA) 26 Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006). These factors guide a court in 27 1 Courts may dismiss actions sua sponte under Rule 41(b) based on the plaintiff’s failure to prosecute. Hells Canyon 28 Pres. Council v. U. S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (citation omitted). 1 deciding what to do, and are not conditions that must be met in order for a court to take action. In 2 re PPA, 460 F.3d at 1226 (citation omitted). 3 Given Plaintiff’s failure to update his address or communicate with the Court, the 4 expeditious resolution of litigation and the Court’s need to manage its docket weigh in favor of 5 dismissal. Id. at 1227. More importantly, given the Court’s apparent inability to communicate 6 with Plaintiff, there are no other reasonable alternatives available to address Plaintiff’s failure to 7 prosecute this action and his failure to apprise the Court of his current address. Id. at 1228–29; 8 Carey, 856 F.2d at 1441. The Court will therefore recommend that this action be dismissed based 9 on Plaintiff’s failure to prosecute this action. 10 III. Conclusion and Recommendation 11 Accordingly, it is HEREBY ORDERED that Defendant is relieved of the obligation to file 12 further status reports until further order of the Court. 13 Furthermore, the Court HEREBY RECOMMENDS that this action be dismissed, without 14 prejudice, based on Plaintiff’s failure to prosecute. Fed. R. Civ. P. 41(b); Local Rule 183(b). 15 These Findings and Recommendations will be submitted to the United States District 16 Judge assigned to the case, under the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 17 days after being served with these Findings and Recommendations, the parties may file written 18 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 19 Findings and Recommendations.” The parties are advised that failure to file objections within the 20 specified time may result in the waiver of the “right to challenge the magistrate’s factual 21 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 22 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED. 23

24 Dated: August 11, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 25

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