Varela v. Selma Police Department et al

Filing 4

FINDINGS and RECOMMENDATIONS recommending that Plaintiff's Complaint be Dismissed Without Prejudice. Matter referred to Judge O'Neill; Objections to F&R due within fourteen (14) days of service of this recommendation; signed by Magistrate Judge Sheila K. Oberto on 4/22/2014. (Timken, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT VARELA,
Plaintiff,

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v.

Case No. 1:13-cv-01512-LJO-SKO
FINDINGS AND RECOMMENDATIONS
THAT PLAINTIFF'S COMPLAINT BE
DISMISSED WITHOUT PREJUDICE
OBJECTIONS DUE: 14 DAYS

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SELMA POLICE DEPARTMENT, et al.,

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Defendants.
_____________________________________/

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I.

(Doc. 1)

INTRODUCTION AND PROCEDURAL BACKGROUND

On September 18, 2013, Plaintiff Robert Varela ("Plaintiff"), representing himself in

20 propria persona, filed a complaint against Defendants Selma Police Department, Danny Barcellos,
21 Maria Cuevas, Google Street View, Yahoo.com, Sprint Cellular, facebook.com, and
22 spoofapp.com. (Doc. 1.) The complaint sets forth Plaintiff's address as the Fresno County Jail.
23 (Doc. 1.) Plaintiff filed a motion to proceed in forma pauperis, which was granted on February 4,
24 2014, and the order was served on Plaintiff by mail. On February 7, 2014, the order was returned
25 as "undeliverable," and indicated Plaintiff was "Not In Custody."
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For the reasons set forth below, the Court RECOMMENDS that Plaintiff's complaint be

27 DISMISSED without prejudice pursuant to the Local Rules of the United States District Court,
28 Eastern District of California, Rule 183(b).

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II.

DISCUSSION

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Local Rule 183(b) provides:

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A party appearing in propria persona shall keep the Court and 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 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 prejudice
for failure to prosecute.

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Plaintiff has not provided the Court with a current address, and more than sixty-three (63)

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8 days have passed since mail from the Court was first returned by the U.S. Postal Service as
9 undeliverable. The Court has no way to contact Plaintiff; the address set forth in the complaint is
10 not current. As such, pursuant to Local Rule 183(b), "the Court may dismiss the action without
11 prejudice for failure to prosecute."
III.

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CONCLUSION AND RECOMMENDATION

Accordingly, the Court HEREBY RECOMMENDS that the complaint be DISMISSED

14 without prejudice pursuant to Local Rule 183(b) due to Plaintiff's failure to provide the Court with
15 a current, valid address and the case be administratively closed.
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These findings and recommendations are submitted to the district judge assigned to this

17 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court's Local Rule 304. Within fourteen
18 (14) days of service of this recommendation, any party may file written objections to these
19 findings and recommendations with the Court and serve a copy on all parties. Such a document
20 should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The
21 district judge will review the magistrate judge's findings and recommendations pursuant to 28
22 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified
23 time may waive the right to appeal the district judge's order. Martinez v. Ylst, 951 F.2d 1153 (9th
24 Cir. 1991).
IT IS SO ORDERED.
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Dated:

April 22, 2014

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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