Opinion
Case No. CV 13-8009-JFW (JPR)
07-22-2014
LEWIS B. BARBEE, Plaintiff, v. CALIFORNIA DEP'T OF CORR. et al., Defendants.
ORDER ACCEPTING FINDINGS AND
RECOMMENDATIONS OF U.S.
MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Complaint, records on file, and Report and Recommendation of the previously assigned U.S. Magistrate Judge. On June 23 and 26, 2014, mail the Court sent to Plaintiff at his address of record was returned as undeliverable. Plaintiff has not filed Objections to the R&R, which were due on June 30, 2014, or a change of address.
Local Rule 41-6 provides that
[a] party proceeding pro se shall keep the Court . . . apprised of such party's current address . . . . If mail directed by the Clerk to a pro se plaintiff's address of record is returned undelivered by the Postal Service, and if, within fifteen (15) days of the service date, such
plaintiff fails to notify, in writing, the Court and opposing parties of said plaintiff's current address, the Court may dismiss the action with or without prejudice for want of prosecution.
Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (per curiam), examined when it is appropriate to dismiss a plaintiff's lawsuit for failure to prosecute. See also Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962) ("The power to invoke [dismissal] is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts.").
In determining whether to dismiss a pro se plaintiff's lawsuit for failure to prosecute, a court must consider "(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, 856 F.2d at 1440 (internal quotation marks omitted). Unreasonable delay creates a rebuttable presumption of prejudice to the defendants that can be overcome only with an affirmative showing of just cause by the plaintiff. In re Eisen, 31 F.3d 1447, 1452-53 (9th Cir. 1994).
Here, all of the Carey factors militate in favor of dismissal. In particular, no less drastic sanction is available, as Plaintiff has ceased communicating with the Court and, because he has not filed a change of address, the Court has no way to communicate with him. See Scott v. Belmares, 328 F. App'x 538, 539 (9th Cir. 2009) (affirming dismissal of civil-rights lawsuit in part because pro se plaintiff failed to keep Court apprised of change of address under Local Rule 41-6). Moreover, as the previously assigned Magistrate Judge concluded in his R&R, the Complaint failed to state a claim and could not be amended to do so, and thus there are no "merits" on which this case can be resolved.
Plaintiff's name does not appear in a search of the California Department of Corrections and Rehabilitation's Inmate Locator website.
The Court accepts the findings and recommendations of the previously assigned Magistrate Judge and also finds that Plaintiff has failed to prosecute this action. IT IS ORDERED that the Complaint is denied without leave to amend and Judgment be entered dismissing this action with prejudice.
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JOHN F. WALTER
U.S. DISTRICT JUDGE