1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GOPI RAJAGOPAL, 1:22-cv-01023-CDB (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS

TO DISMISS FOR PLAINTIFF’S

13 v. FAILURE TO OBEY COURT ORDER

AND FAILURE TO PROSECUTE

14 TRACY RICHARDSON, et al. Clerk of the Court to Assign District Judge 15 Defendants.

16 17 Plaintiff Gopi Rajagopal is an inmate proceeding pro se and in forma pauperis in this civil 18 rights action pursuant to 42 U.S.C. § 1983. 19 I. RELEVANT BACKGROUND 20 Plaintiff initiated this action with the filing of his complaint on August 15, 2022. (Doc. 1.) 21 On August 18, 2022, the Court issued its Order Granting Plaintiff’s Application to 22 Proceed In Forma Pauperis and Order Directing Payment of Inmate Filing Fee by the Stanislaus 23 County Sheriff. (Doc. 5.) 24 On October 6, 2022, the Court issued an Order of Reassignment, reassigning this matter 25 from the temporarily assigned magistrate judge to the undersigned for all further proceedings. 26 (Doc. 6.) 27 October 18, 2022, the Order of Reassignment was returned by the U.S. Postal Service 28 marked Undeliverable, Refused and Unable to Forward. (Docket Entry dated 10/18/22.) 1 II. DISCUSSION 2 Plaintiff is required to keep the Court apprised of his current address at all times. Local 3 Rule 183(b) provides:

4 Address Changes. A party appearing in propria persona shall keep the Court and 5 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 6 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 7 prejudice for failure to prosecute. 8 Federal Rule of Civil Procedure 41(b) also provides for dismissal of an action for failure to 9 prosecute.1 10 According to the Court’s docket, Plaintiff’s address change was due no later than 11 December 27, 2022. More than 63 days have now passed, and Plaintiff has failed to file a change 12 of address. Therefore, Plaintiff has failed to comply with this Court’s Local Rules and has failed 13 to prosecute this action. 14 “In determining whether to dismiss an action for lack of prosecution, the district court is 15 required to weigh several factors: (1) the public’s interest in expeditious resolution of litigation; 16 (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 17 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 18 sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (internal quotation marks & 19 citation omitted). These factors guide a court in deciding what to do and are not conditions that 20 must be met in order for a court to take action. In re Phenylpropanolamine (PPA) Products 21 Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (citation omitted). 22 Plaintiff’s failure to file a notice of change of address following the return of legal mail 23 directed to Plaintiff at his address on record with this Court weighs in favor of dismissal. Given 24 the Court’s inability to communicate with Plaintiff, there are no other reasonable alternatives 25 available to address Plaintiff’s failure to prosecute this action and his failure to apprise the Court 26 of his current address. Thus, the first and second factors — the expeditious resolution of litigation

27 1 Courts may dismiss actions sua sponte under Rule 41(b) based on the plaintiff’s failure 28 to prosecute. Hells Canyon Pres. Council v. U. S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) 1 and the Court’s need to manage its docket — weigh in favor of dismissal. Carey, 856 F.2d at 2 1440. 3 The third factor, risk of prejudice to defendant, also weighs fairly in favor of dismissal 4 since a presumption of injury arises from the occurrence of unreasonable delay in prosecuting an 5 action. See Anderson v. Air W., 542 F.2d 522, 524 (9th Cir. 1976). Here, while no defendant has 6 appeared in this action, the case has been pending for more than four months. Thus, the third 7 factor also weighs in favor of dismissal. Carey, 856 F.2d at 1440. 8 The fourth factor usually weighs against dismissal because public policy favors 9 disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). However, 10 “this factor lends little support to a party whose responsibility it is to move a case toward 11 disposition on the merits but whose conduct impedes progress in that direction.” In re PPA, 460 12 F.3d at 1228. Plaintiff has not moved this case forward toward disposition on the merits. He has 13 instead stopped communicating with the Court altogether. Therefore, the fourth factor also 14 weighs in favor of dismissal. Carey, 856 F.2d at 1440. 15 Finally, the Court’s warning to a party that failure to obey the court’s order will result in 16 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik v. Bonzelet, 963 17 F.2d 1258, 1262 (9th Cir. 1992). In this Court’s First Informational Order In Prisoner/Civil 18 Detainee Civil Rights Case, issued August 16, 2022, Plaintiff was warned that a “pro se plaintiff 19 must keep the Court and opposing parties informed of the party’s correct current address,” citing 20 Local Rule 182(f). (See Doc. 4 at 5.) The Order further warned that if “a pro se plaintiff’s address 21 is not updated within sixty-three (63) days of mail being returned as undeliverable, the case will 22 be dismissed for failure to prosecute,” citing to Local Rule 183(b). (Id.) Thus, the undersigned 23 finds Plaintiff had adequate warning that dismissal could result from his noncompliance with a 24 Court order and this Court’s local rules. In sum, the fifth factor weighs in favor of dismissal. 25 Ferdick, 963 F.2d at 1262; Carey, 856 F.2d at 1440. 26 // 27 // 28 // 1 I. CONCLUSION AND RECOMMENDATION 2 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a 3 | district judge to this action. 4 Furthermore, the Court HEREBY RECOMMENDS that this action be dismissed, without 5 || prejudice, based on Plaintiff's failure to prosecute this action and failure to keep the Court 6 | apprised of his current address. Fed. R. Civ. P. 41(b); Local Rule 183(b). 7 These Findings and Recommendations will be submitted to the United States District 8 | Judge assigned to the case, under the provisions of 28 U.S.C. § 636(b)(1). Within 14 days after 9 | being served with these Findings and Recommendations, Plaintiff may file written objections 10 | with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings 11 | and Recommendations.” Plaintiff is advised that failure to file objections within the specified 12 || time may result in the waiver of the “right to challenge the magistrate’s factual findings” on 13 | appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 14 | F.2d 1391, 1394 (9th Cir. 1991)). 15 | IT IS SO ORDERED. ‘6 Dated: _ January 4, 2023 | ) Ww Vv KD 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28