(PC) Wilson v. Torres

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 IAN WILSON, Case No. 1:20-cv-01430-KES-BAM (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATION TO DISMISS ACTION FOR FAILURE TO 13 v. PROSECUTE 14 TORRES, et al., FOURTEEN (14) DAY DEADLINE 15 Defendants. 16 17 I. Background 18 Plaintiff Ian Wilson (“Plaintiff”) is a former state prisoner proceeding pro se in this civil 19 rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s first amended 20 complaint for claims of deliberate indifference to serious medical needs in violation of the Eighth 21 Amendment against Defendants Longia and Patel for allegedly cancelling an approved surgery in 22 October 2019, and against Defendant Toor for allegedly not providing medication to Plaintiff on 23 August 15, 2019. 24 On March 14, 2024, this case was reassigned to District Judge Kirk E. Sherriff for all 25 further proceedings. (ECF No. 46.) On March 27, 2024, the Court’s order reassigning the case 26 was returned as “Undeliverable, Return to Sender, Refused, Unable to Forward.” Plaintiff’s 27 address was updated to 953 Los Palmas, Santa Clara, CA 95050, and the order reassigning the 28 case was re-served at the new address of record. (ECF No. 48.) The order reassigning the case 1 was again returned on April 5, 2024 as “Undeliverable, RTS, Attempted – Not Known, Unable to 2 Forward.” Plaintiff’s notice of change of address was therefore due on or before June 7, 2024. 3 Local Rule 183(b). 4 Plaintiff has not filed a notice of change of address or otherwise communicated with the 5 Court. 6 II. Discussion 7 Plaintiff is required to keep the Court apprised of his current address at all times. Local 8 Rule 183(b) provides:

9 Address Changes. A party appearing in propria persona shall keep the Court and 10 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, 11 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 12 without prejudice for failure to prosecute. 13 Federal Rule of Civil Procedure 41(b) also provides for dismissal of an action for failure to 14 prosecute.1 15 Plaintiff’s address change was due no later than June 7, 2024. Plaintiff has failed to file a 16 change of address and he has not otherwise been in contact with the Court. “In determining 17 whether to dismiss an action for lack of prosecution, the district court is required to weigh several 18 factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 19 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 20 disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Carey v. 21 King, 856 F.2d 1439, 1440 (9th Cir. 1988) (internal quotation marks and citation omitted); accord 22 Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010); In re Phenylpropanolamine (PPA) 23 Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006). These factors guide a court in 24 deciding what to do, and are not conditions that must be met in order for a court to take action. In 25 re PPA, 460 F.3d at 1226 (citation omitted). 26 /// 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 Given Plaintiff’s failure to update his address or communicate with the Court, the 2 expeditious resolution of litigation and the Court’s need to manage its docket weigh in favor of 3 dismissal. Id. at 1227. More importantly, given the Court’s apparent inability to communicate 4 with Plaintiff, there are no other reasonable alternatives available to address Plaintiff’s failure to 5 prosecute this action and his failure to apprise the Court of his current address. Id. at 1228–29; 6 Carey, 856 F.2d at 1441. The Court will therefore recommend that this action be dismissed based 7 on Plaintiff’s failure to prosecute this action. 8 III. Conclusion and Recommendation 9 Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed, without 10 prejudice, based on Plaintiff’s failure to prosecute. Fed. R. Civ. P. 41(b); Local Rule 183(b). 11 These Findings and Recommendations will be submitted to the United States District 12 Judge assigned to the case, under the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 13 days after being served with these Findings and Recommendations, the parties may file written 14 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 15 Findings and Recommendations.” The parties are advised that failure to file objections within the 16 specified time may result in the waiver of the “right to challenge the magistrate’s factual 17 findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. 18 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 19 IT IS SO ORDERED. 20

21 Dated: June 18, 2024 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 22

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