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-00953 JLT SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO 13 v. DISMISS ACTION WITHOUT PREJUDICE FOR PLAINTIFF’S FAILURE TO 14 HILDEBRAND, et al., PROSECUTE AND TO OBEY COURT ORDERS 15 Defendants. 14-DAY OBJECTION PERIOD 16

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18 Plaintiff Jared Andrew Martin is proceeding pro se and in forma pauperis in this civil 19 rights action pursuant to

. 20 I. RELEVANT BACKGROUND 21 Plaintiff filed his original complaint on August 2, 2022. (Doc. 1.) On May 12, 2023, this 22 Court issued its First Screening Order. (Doc. 7.) The Court found Plaintiff stated a cognizable 23 Eighth Amendment excessive force claim against Defendant Hildebrand but he failed to state any 24 other cognizable claim against any other defendant. (Id. at 4-13.) Plaintiff was directed to elect 25 one of the following options within 21 days of the date of service of the order: (1) notify the 26 Court that he did not wish to file a first amended complaint and instead wished to proceed only on 27 his cognizable Eighth Amendment claim against Defendant Hildebrand; or (2) file a first 1 Following service of the First Screening Order, a docket entry of May 26, 2022, reflects 2 the Order was returned by the United States Postal Service marked “Undeliverable, Not in 3 Custody.” 4 II. DISCUSSION 5 Plaintiff is required to keep the Court apprised of his current address at all times. Local 6 Rule 183(b) provides:

7 Address Changes. A party appearing in propria persona shall keep the Court and 8 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 9 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 10 prejudice for failure to prosecute. 11 Federal Rule of Civil Procedure 41(b) also provides for dismissal of an action for failure to 12 prosecute.1 13 Following the Court’s receipt of mail returned by the postal service marked 14 “Undeliverable, Not in Custody” on May 26, 2023, Plaintiff’s address change was due no later 15 than July 28, 2023. It has been 68 days since the last mail directed to Plaintiff was returned to the 16 Court marked as undeliverable. Plaintiff has failed to file a change of address and has not 17 otherwise been in contact with the Court. Therefore, Plaintiff has failed to comply with this 18 Court’s Local Rules and has failed to prosecute this action. 19 “In determining whether to dismiss an action for lack of prosecution, the district court is 20 required to weigh several factors: (1) the public’s interest in expeditious resolution of litigation; 21 (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 22 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 23 sanctions.” Carey v. King,

(9th Cir. 1988) (internal quotation marks & 24 citation omitted); accord Omstead v. Dell, Inc.,

(9th Cir. 2010); In re 25 Phenylpropanolamine (PPA) Products Liability Litigation,

(9th Cir. 2006). 26 These factors guide a court in deciding what to do and are not conditions that must be met in 27

1 Courts may dismiss actions sua sponte under Rule 41(b) based on the plaintiff’s failure to prosecute. 1 order for a court to take action. In re PPA,

(citation omitted). 2 Plaintiff’s failure to file a notice of change of address after May 26, 2023, weighs in favor 3 of dismissal. Given the Court’s inability to communicate with Plaintiff, there are no other 4 reasonable alternatives available to address Plaintiff’s failure to prosecute this action and his 5 failure to apprise the Court of his current address. Thus, the first and second factors — the 6 expeditious resolution of litigation and the Court’s need to manage its docket —weigh in favor of 7 dismissal. Carey,

; Henderson v. Duncan,

(9th Cir. 8 1986); In re PPA,

. 9 The third factor also weighs fairly in favor of dismissal since a presumption of injury 10 arises from the occurrence of unreasonable delay in prosecuting an action. See Anderson v. Air

F.2d 522, 524 (9th Cir. 1976). Here, while no defendant has appeared in this action, the 12 case has been pending for one year. Thus, the third factor—a risk of prejudice to defendants— 13 also weighs in favor of dismissal. Carey,

. 14 The fourth factor usually weighs against dismissal because public policy favors 15 disposition on the merits. Pagtalunan v. Galaza,

(9th Cir. 2002). However, 16 “this factor lends little support to a party whose responsibility it is to move a case toward 17 disposition on the merits but whose conduct impedes progress in that direction.” Plaintiff has not 18 moved this case forward toward disposition on the merits. He has instead stopped communicating 19 with the Court altogether. In re PPA,

. Therefore, the fourth factor— the public 20 policy favoring disposition of cases on their merits —also weighs in favor of dismissal. Carey, 21

. 22 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 23 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik v. Bonzelet, 963

, 1262 (9th Cir. 1992); Malone v. U.S. Postal Service,

(9th Cir. 25 1987); Henderson,

. In this Court’s First Informational Order In Prisoner/Civil 26 Detainee Civil Rights Case, issued August 2, 2022, Plaintiff was warned that a “pro se plaintiff 27 must keep the Court and opposing parties informed of the party’s correct current address,” citing 1 is not updated within sixty-three (63) days of mail being returned as undeliverable, the case will 2 be dismissed for failure to prosecute,” citing to Local Rule 183(b). (Id.) Thus, the undersigned 3 finds Plaintiff had adequate warning that dismissal could result from his noncompliance with a 4 Court order and this Court’s local rules. In sum, the fifth factor— the availability of less drastic 5 sanctions — weighs in favor of dismissal. Ferdick, 963 F.2d at 1262; Carey,

. 6 III. CONCLUSION AND RECOMMENDATION 7 The Court HEREBY RECOMMENDS that this action be dismissed, without prejudice, 8 based on Plaintiff’s failure to prosecute this action and failure to keep the Court apprised of his 9 current address. Fed. R. Civ. P. 41(b); Local Rule 183(b). 10 These Findings and Recommendations will be submitted to the district judge assigned to 11 this case, pursuant to

(b)(l). Within 14 days of the date of service of these 12 Findings and Recommendations, a party may file written objections with the Court. The 13 document should be captioned, “Objections to Magistrate Judge’s Findings and 14 Recommendations.” Failure to file objections within the specified time may result in waiver of 15 rights on appeal. Wilkerson v. Wheeler,

(9th Cir. 2014) (citing Baxter v. 16 Sullivan,

(9th Cir. 1991)). 17 IT IS SO ORDERED. 18

19 Dated: August 8, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 20

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