(PC) Barber v. Navarrete

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES EUGENE BARBER, Case No. 1:25-cv-01052-KES-BAM (PC) 12 Plaintiff, ORDER VACATING MAY 28, 2026 FINDINGS AND RECOMMENDATIONS 13 v. (ECF No. 12) 14 NAVARRETE, et al., FINDINGS AND RECOMMENDATIONS TO 15 Defendants. DISMISS ACTION FOR FAILURE TO PROSECUTE 16 FOURTEEN (14) DAY DEADLINE 17 18 I. Background 19 Plaintiff James Eugene Barber (“Plaintiff”) is a county jail inmate and former state 20 prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. 21 § 1983. On May 28, 2026, the Court issued findings and recommendations that recommended 22 this action be dismissed for failure to state a cognizable claim upon which relief may be granted. 23 (ECF No. 12.) The Court served the findings and recommendations on Plaintiff on the same date. 24 (See Docket.) Those findings and recommendations were returned as “Undeliverable, RTS” on 25 June 8, 2026. (Id.) 26 On June 1, 2026, Plaintiff filed a notice of change of address. (ECF No. 13.) 27 Accordingly, the Court re-served the May 28, 2026 findings and recommendations on Plaintiff’s 28 updated address. (See Docket.) On June 18, 2026, the re-served findings and recommendations 1 were returned as “Undeliverable, RTS, not deliverable as addressed, unable to forward.” (Id.) 2 Plaintiff’s updated notice of change of address was due on or before July 20, 2026. Local Rule 3 183(b). Plaintiff has not filed a notice of change of address or otherwise communicated with the 4 Court. The Court therefore will vacate the May 28, 2026 findings and recommendations and 5 recommend this action be dismissed based on Plaintiff’s failure to prosecute. 6 II. Discussion 7 Plaintiff is required to keep the Court apprised of his current address at all times. Local 8 Rule 183(b) provides: 9 Address Changes. A party appearing in propria persona shall keep the Court and 10 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, 11 and if such plaintiff fails to notify the Court and opposing parties within thirty (30) days thereafter of a current address, the Court may dismiss the action without 12 prejudice for failure to prosecute. 13 Federal Rule of Civil Procedure 41(b) also provides for dismissal of an action for failure to 14 prosecute.1 15 As noted, Plaintiff’s address change was due no later than July 20, 2026. Plaintiff has 16 failed to file a change of address, and he has not otherwise been in contact with the Court. 17 “In determining whether to dismiss an action for lack of prosecution, the district court is 18 required to weigh several factors: (1) the public’s interest in expeditious resolution of litigation; 19 (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 20 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 21 sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (internal quotation marks and 22 citation omitted); accord Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010); In re 23 Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006). 24 These factors guide a court in deciding what to do and are not conditions that must be met in 25 order for a court to take action. In re PPA, 460 F.3d at 1226 (citation omitted). 26 Given Plaintiff’s failure to update his address or communicate with the Court, the 27 1 Courts may dismiss actions sua sponte under Rule 41(b) based on the plaintiff’s failure to prosecute. 28 Hells Canyon Pres. Council v. U. S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (citation omitted). 1 expeditious resolution of litigation and the Court’s need to manage its docket weigh in favor of 2 dismissal. In re PPA, 460 F.3d at 1227. More importantly, given the Court’s apparent inability 3 to communicate with Plaintiff, there are no other reasonable alternatives available to address 4 Plaintiff’s failure to prosecute this action and his failure to apprise the Court of his current 5 address. Id. at 1228–29; Carey, 856 F.2d at 1441. The Court will therefore recommend that this 6 action be dismissed based on Plaintiff’s failure to prosecute this action. 7 III. Conclusion and Recommendation 8 Accordingly, the findings and recommendations issued on May 28, 2026, are HEREBY 9 VACATED. 10 Further, the Court HEREBY RECOMMENDS that this action be dismissed, without 11 prejudice, based on Plaintiff’s failure to prosecute. Fed. R. Civ. P. 41(b); Local Rule 183(b). 12 These Findings and Recommendations will be submitted to the United States District 13 Judge assigned to the case, under the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 14 days after being served with these Findings and Recommendations, the parties may file written 15 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 16 Findings and Recommendations.” Objections, if any, shall not exceed fifteen (15) pages or 17 include exhibits. Exhibits may be referenced by document and page number if already in 18 the record before the Court. Any pages filed in excess of the 15-page limit may not be 19 considered. The parties are advised that failure to file objections within the specified time may 20 result in the waiver of the “right to challenge the magistrate’s factual findings” on 21 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838–39 (9th Cir. 2014) (citing Baxter v. Sullivan, 22 923 F.2d 1391, 1394 (9th Cir. 1991)). 23 IT IS SO ORDERED. 24 25 Dated: July 29, 2026 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 26 27 28