(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)

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