(PC) Wilson v. Torres

Opinion

IAN WILSON, Case No. 1:20-cv-01430-KES-BAM (PC) Plaintiff, FINDINGS AND RECOMMENDATION TO DISMISS ACTION FOR FAILURE TO v. PROSECUTE TORRES, et al., FOURTEEN (14) DAY DEADLINE Defendants. I. Background Plaintiff Ian Wilson (“Plaintiff”) is a former state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiff’s first amended complaint for claims of deliberate indifference to serious medical needs in violation of the Eighth Amendment against Defendants Longia and Patel for allegedly cancelling an approved surgery in October 2019, and against Defendant Toor for allegedly not providing medication to Plaintiff on August 15, 2019. On March 14, 2024, this case was reassigned to District Judge Kirk E. Sherriff for all further proceedings. (ECF No. 46.) On March 27, 2024, the Court’s order reassigning the case was returned as “Undeliverable, Return to Sender, Refused, Unable to Forward.” Plaintiff’s address was updated to 953 Los Palmas, Santa Clara, CA 95050, and the order reassigning the case was re-served at the new address of record. (ECF No. 48.) The order reassigning the case was again returned on April 5, 2024 as “Undeliverable, RTS, Attempted – Not Known, Unable to Forward.” Plaintiff’s notice of change of address was therefore due on or before June 7, 2024. Local Rule 183(b). Plaintiff has not filed a notice of change of address 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 Plaintiff’s address change was due no later than June 7, 2024. 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). /// 1 Courts may dismiss actions sua sponte under Rule 41(b) based on the plaintiff’s failure to prosecute. Hells Canyon Pres. Council v. U. S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (citation omitted). Given Plaintiff’s failure to update his address or communicate with the Court, 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. Conclusion and Recommendation Accordingly, 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). These 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)(l). Within fourteen (14) days after being served with these Findings and Recommendations, the parties may file written objections with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are 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)). IT IS SO ORDERED.

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