Opinion
Case No. 1:15-cv-00772 AWI DLB PC
09-30-2015
LEON LANDON BURDINE, Plaintiff, v. NALLEY KANDKHOVOVA, et al., Defendants.
ORDER DISMISSING ACTION FOR FAILURE TO PROSECUTE
Plaintiff Leon Landon Burdine, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on January 15, 2015, in the United States District Court for the Northern District of California. On May 20, 2015, the Northern District transferred the case to this Court.
On May 29, 2015, the Court sent Plaintiff an order directing him to submit the filing fee or a completed application to proceed in forma pauperis. On July 9, 2015, the order was returned by the United States Postal Service as undeliverable. On July 13, 2015, the Court issued an order directing Plaintiff to complete and return a consent/decline form. That order was returned by the United States Postal Service as undeliverable on August 26, 2015.
Plaintiff is required to keep the Court apprised of his current address at all times, and Local Rule 183(b) provides, "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.
Courts may dismiss actions sua sponte under Rule 41(b) based on the plaintiff's failure to prosecute. Hells Canyon Preservation Council v. U. S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (citation omitted). --------
Plaintiff's address change was due by September 17, 2015, but he failed to file one 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 consider 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).
This case has been pending since January of 2015, and the expeditious resolution of litigation and the Court's need to manage its docket weigh in favor of dismissal. Id. at 1227. Further, the opposing party is necessarily prejudiced when he is unaware of the plaintiff's location during the discovery phase of the litigation. Id.
With respect to the fourth factor, "public policy favoring disposition of cases on their merits strongly counsels against dismissal," but "this factor lends little support to a party whose responsibility it is to move a case toward disposition on the merits but whose conduct impedes progress in that direction." Id. at 1228.
Finally, given the Court's and Defendant's inability to communicate with Plaintiff, there are no other reasonable alternatives available to address Plaintiff's failure to prosecute. In re PPA, 460 F.3d at 1228-29; Carey, 856 F.2d at 1441.
ORDER
Accordingly, IT IS HEREBY ORDERED that the action is DISMISSED without prejudice, based on Plaintiff's failure to prosecute. Fed. R. Civ. P. 41(b); Local Rule 183(b). IT IS SO ORDERED. Dated: September 30, 2015
/s/_________
SENIOR DISTRICT JUDGE