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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

KENNETH MILLS, No. CIV S-04-1649-DFL-CMK

Plaintiff, 

vs. FINDINGS AND RECOMMENDATIONS

STATE OF CALIFORNIA, et al.,

Defendants.

 /

Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant

to 42 U.S.C. § 1983. On September 1, 2004, the court directed plaintiff to submit either an

application for leave to proceed in forma pauperis or the filing fee within 30 days. That order was

served by the Clerk of the Court on plaintiff at the following address, which was plaintiff’s

address of record as of the date of service: 

San Joaquin County Jail

999 West Matthews Road

French Camp, CA 95231

That order was returned as undeliverable on October 13, 2004. 

/ / /

/ / /

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On March 3, 2005, plaintiff submitted a document to the court. That document

reflects that plaintiff changed addresses. In the interest of justice, on October 6, 2005, the court

issued an order construing the March 3, 2005, document as a notice of change of address to the

following:

Metropolitan State Hospital

11401 S. Bloomfield Avenue

Norwalk, California, 90650

The October 6, 2005, order also provided plaintiff an additional opportunity to comply with the

court’s initial September 1, 2004, order, and warned plaintiff that failure to comply may result in

dismissal of this case. The October 6, 2005, order was also returned as undeliverable. 

On October 21, 2005, the court issued an order directing plaintiff to show cause in

writing why this action should not be dismissed for lack of prosecution and failure to comply with

court rules and orders. See Local Rule 11-110. That order was served on plaintiff at both of the

foregoing addresses. The order was again returned undeliverable at either address. 

The court must weigh five factors before imposing the harsh sanction of dismissal. 

See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. U.S. Postal

Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's interest in

expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) the risk of

prejudice to opposing parties; (4) the public policy favoring disposition of cases on their merits;

and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 46 F.3d 52,

53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an appropriate

sanction is considered a less drastic alternative sufficient to satisfy the last factor. See Malone,

833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is appropriate where

there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.

1986). Dismissal has also been held to be an appropriate sanction for failure to follow local rules,

see Ghazali, 46 F.3d at 53, and failure to inform the district court and parties of a change of

address pursuant to local rules, see Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (per

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curiam).

Having considered these factors, and in light of plaintiff’s failure to inform the

court of his current address, the court concludes that dismissal is appropriate.

Based on the foregoing, the undersigned recommends that this action be dismissed

and that all pending motions be denied as moot.

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within ten days

after being served with these findings and recommendations, any party may file written objections

with the court. The document should be captioned “Objections to Magistrate Judge's Findings

and Recommendations.” Failure to file objections within the specified time may waive the right

to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: November 2, 2005.

______________________________________

CRAIG M. KELLISON

UNITED STATES MAGISTRATE JUDGE

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