(PC) Gonzales v. Tham et al

Filing 11

FINDINGS and RECOMMENDATIONS to Dismiss Case Without Prejudice for Failure to Prosecute; ORDER to Assign to District Judge, signed by Magistrate Judge Helena M. Barch-Kuchta on 05/22/2023. Referred to Judge Thurston. Objections to F&R due within Fourteen-Days. (Maldonado, C)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARK ANTHONY GONZALES 12 13 14 15 16 Case No. 1:20-cv-00800-HBK (PC) Plaintiff, ORDER TO ASSIGN TO DISTRICT JUDGE v. SGT. THAM, DEPUTY MAYA, DEPUTY SHAFFER, and KINGS COUNTY DEPUTIES, FINDINGS AND RECOMMENDATIONS TO DISMISS CASE WITHOUT PREJUDICE FOR FAILURE TO PROSECUTE FOURTEEN-DAY DEADLINE Defendants. 17 18 19 Plaintiff Mark Anthony Gonzales initiated this action as a state prisoner by filing a pro se 20 civil rights complaint. (Doc. No. 1). For the reasons set forth below, the undersigned 21 recommends that the District Court dismiss this action consistent with the Court’s Local Rule for 22 Plaintiff’s failure to prosecute this action. Specifically, Plaintiff failed to keep the Court 23 appraised of a current address. 24 25 BACKGROUND On February 23, 2023, the undersigned issued an order to show cause why the action 26 should not be dismissed for Plaintiff’s failure to exhaust administrative remedies. (Doc. No. 10). 27 On March 17, 2023, the February 23, 2023 Order was returned as “undeliverable, return to 28 sender, inactive.” See docket. Plaintiff’s change of address was due no later than May 19, 2023. 1 Local Rule 183(b). Plaintiff has not filed an updated address as required by Local Rule 182(f) 2 and the time to do so has expired. See docket. 3 4 5 APPLICABLE LAW AND ANALYSIS Plaintiff was obligated to keep this Court informed of his proper address. Specifically: 8 [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. 9 Local Rule 183(b); see also Local Rule 182(f) (all parties are “under a continuing duty” to notify 10 the clerk of “any change of address[.]”). Plaintiff was notified of his obligation to keep the Court 11 informed of his address and advised that the Court would dismiss an action without prejudice if 12 Plaintiff does not update his address within sixty-three (63) days. (Doc. No. 3, VIII.B.). 13 Precedent supports a dismissal of a case when a litigant does not keep the court appraised on his 14 address. Carey v. King, 856 F.2d 1439 (9th Cir. 1988) (affirming lower court and finding no 15 abuse of discretion when district court dismissed case without prejudice after pro se plaintiff did 16 not comply with local rule requiring pro se plaintiffs keep court apprised of addresses at all 17 times); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal proper for failure to 18 prosecute and comply with local rules of court); Hanley v. Opinski, 2018 WL 3388510 (E.D. Ca. 19 July 10, 2018) (dismissing action for failure to prosecute and to provide court with current 20 address); Davis v. Kern Valley State Prison, 2023 WL 2992980, at *1, fn 1 (E.D. Cal. Apr. 18, 21 2023). Sixty-three (63) days has passed since the Court’s February 23, 2023 order to show cause 22 was returned as undeliverable, and Plaintiff has not filed a notice of change of address. 6 7 23 Accordingly, it is ORDERED: 24 The Clerk of Court shall assign this case to a district judge for consideration of these 25 Findings and Recommendations. 26 It is further RECOMMENDED: 27 This case be dismissed without prejudice pursuant to Local Rule 183(b) for Plaintiff’s 28 failure to prosecute this action. 2 1 NOTICE TO PARTIES 2 These findings and recommendations will be submitted to the United States district judge 3 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 4 days after being served with these findings and recommendations, a party may file written 5 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 6 Findings and Recommendations.” Parties are advised that failure to file objections within the 7 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 8 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 9 10 Dated: May 22, 2023 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?