O'Dell v. Allison et al

Filing 27

ORDER (1) GRANTING 26 Plaintiff's Second Motion to Extend Time to File Amended Complaint; (2) VACATING 25 Findings and Recommendations to Dismiss Action for Failure to Obey Court Order and Failure to Prosecute; (3) DISCHARGING 23 Order to Show Cause; and (4) Requiring Plaintiff to File a Notice of Change of Address Form Within Thirty (30) Days signed by Magistrate Judge Michael J. Seng on 1/26/2015. Amended Complaint due within ninety (90) days. Notice of Change of Address due within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DEVONNE O’DELL,
Plaintiff,

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v.

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KATHLEEN ALLISON. et al.,

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Defendants.

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1:11-cv-01202-LJO-MJS (PC)
ORDER (1) GRANTING PLAINTIFF’S
SECOND MOTION TO EXTEND TIME TO
FILE AMENDED COMPLAINT (ECF No.
26), (2) VACATING FINDINGS AND
RECOMMENDATIONS TO DISMISS
ACTION FOR FAILURE TO OBEY COURT
ORDER AND FAILURE TO PROSECUTE
(ECF No. 25), (3) DISCHARGING ORDER
TO SHOW CAUSE (ECF No. 23), AND (4)
REQUIRING PLAINTIFF TO FILE A
NOTICE OF CHANGE OF ADDRESS
FORM WITHIN THIRTY DAYS
THIRTY-DAY DEADLINE FOR NOTICE OF
CHANGE OF ADDRESS
NINETY-DAY DEADLINE FOR AMENDED
COMPLAINT
CLERK TO MAIL PLAINTIFF A NOTICE OF
CHANGE OF ADDRESS FORM AT HIS
ADDRESS OF RECORD
CLERK TO FAX COPY OF THIS ORDER
AND NOTICE OF CHANGE OF ADDRESS
FORM TO LITIGATION COORDINATOR
AT HIGH DESERT STATE PRISON

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Plaintiff is a state prisoner proceeding pro se in a civil rights action pursuant to 42
U.S.C. ' 1983. On September 30, 2014, Plaintiff’s complaint was dismissed for failure to

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state a claim, but he was given leave to file a first amended complaint within thirty days.

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(ECF No. 19.) Plaintiff sought and received a thirty day extension of time in which to file

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his amended pleading. (ECF Nos. 20 & 22.) The extended deadline passed without

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Plaintiff either filing an amended pleading or seeking an extension of time to do so.

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On December 30, 2014, the Court ordered Plaintiff to show cause, within fourteen

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days, why his case should not be dismissed for failure to obey a court order and failure

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to prosecute. (ECF No. 23.) Plaintiff did not respond to the Court’s order to show cause.
On January 21, 2015, the undersigned issued findings and a recommendation to

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dismiss the action based on Plaintiff’s failure to obey a court order and failure to
prosecute. (ECF No. 25.)
On January 23, 2015, Plaintiff filed a motion to extend time to file an amended

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complaint (ECF No. 26) on the grounds that he had moved to a different institution on
November 25, 2014, and not received his legal materials.
I.

NOTICE OF CHANGE OF ADDRESS
Local Rule 183(b) requires a party proceeding pro se to keep the Court apprised

of his current address: “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

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may dismiss the action without prejudice for failure to prosecute.”

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Plaintiff was advised of this requirement when this was action was initiated. (ECF
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No. 3.) However, he failed to submit a Notice of Change of Address form to the Court,
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despite his apparent move to a different institution more than sixty days ago. Although
his mail has not been returned to the Court, it continues to be sent to Salinas Valley
State Prison, rather than High Desert State Prison where Plaintiff apparently is now
housed.
Accordingly, the Court will order Plaintiff to file a Notice of Change of Address
form within thirty days of the date of service of this order. The Court will direct the Clerk
to mail Plaintiff a Notice of Change of Address form at his address of record, and to fax a

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copy of this order and a Notice of Change of Address form to the Litigation Coordinator
at High Desert State Prison.
II.

The Court does not take lightly Plaintiff’s repeated failures to respond to the

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MOTION FOR EXTENSION OF TIME

Court’s orders. (ECF Nos. 22 & 23.) These failures alone provide cause for dismissal of
the action. Local Rule 110; Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995)
(dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 126061 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of a
complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure
to comply with local rule requiring pro se plaintiffs to keep court apprised of address);
Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to
comply with a court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986)

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(dismissal for lack of prosecution and failure to comply with local rules).
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Nevertheless, the Court will grant Plaintiff one final opportunity to file his
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amended pleading within ninety days. At the conclusion of the ninety-day period, Plaintiff
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will have been afforded nearly seven months in which to amend his complaint. Absent
changed circumstances or other good cause, no further extensions of time will be
granted.

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Accordingly, Plaintiff’s motion for extension of time (ECF No. 26) will be granted,
the order to show cause (ECF No. 23) will be discharged, and findings and
recommendation to dismiss the action (ECF No. 25) will be vacated.
III.

CONCLUSION AND ORDER
Based on the foregoing it is HERBEY ORDERED that:
1. Plaintiff’s second motion for extension of time (ECF No. 26) is GRANTED;
2. The order to show cause, filed December 30, 2014 (ECF No. 23), is
DISCHARGED;
3. The findings and recommendation (ECF No. 25), filed January 21, 2015, is
VACATED;

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4. The Clerk’s Office is directed to mail Plaintiff a Notice of Change of Address
form at his address of record, and to fax a copy of this order and a Notice of

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Change of Address form to the Litigation Coordinator at High Desert State

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Prison;

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5. Plaintiff is granted ninety (90) days from the date of service of this order in
which to file an amended pleading; and

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6. Plaintiff shall file a Notice of Change of Address form with the Court within
thirty (30) days of service of this order.

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IT IS SO ORDERED.

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Dated:

January 26, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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