(PC) Thornton v. Castillo et al

Filing 14

FINDINGS and RECOMMENDATIONS to Dismiss 1 Action Without Prejudice Pursuant to Local Rule 182(b) signed by Magistrate Judge Helena M. Barch-Kuchta on 10/16/2023. Referred to Judge Jennifer L. Thurston. Objections to F&R due within Fourteen (14) Days. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SIMON THORNTON,

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Plaintiff,

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v.
A. CASTILLO, S. PINEADA, K.
SANTORO, and K. ALLISON.,

Case No. 1:21-cv-00899-JLT-HBK (PC)
FINDINGS AND RECOMMENDATIONS TO
DISMISS ACTION WITHOUT PREJUDICE
PURSUANT OT LOCAL RULE 182(b)1
14-DAY DEADLINE

Defendants.

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Plaintiff Simon Thornton is a state prisoner proceeding pro se in this civil rights action.

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For the reasons set forth below, the undersigned recommends that the District Court dismiss this

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action consistent with the Court’s Local Rule for Plaintiff’s failure to prosecute this action.

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Specifically, Plaintiff failed to keep the Court appraised of a current address.
BACKGROUND

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Plaintiff initiated this action by filing a civil rights complaint under 42 U.S.C. § 1983.

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(Doc. No. 1, “Complaint”). On August 2, 2023, pursuant to 28 U.S.C. § 1915A the Court issued

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a screening order finding the Complaint failed to state a claim against any of the named

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Defendants. (See generally Doc. No. 13). The Court afforded Plaintiff three options: (1) file an

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amended complaint; (2) file a notice that he intends to stand on his initial complaint subject to the

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This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302
(E.D. Cal. 2022).

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undersigned recommending the district court dismiss for reasons stated in the August 2, 2023

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Screening Order; or (3) file a notice to voluntarily dismiss this action, without prejudice, under

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Federal Rule of Civil Procedure 41(a)(1) because no defendant had yet been served. (Id. at 8-9).

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The Court expressly warned Plaintiff that if he “fails to timely respond to this Court Order or seek

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an extension of time to comply” the undersigned “will recommend that the district court dismiss

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this case as a sanction for Plaintiff’s failure to comply with a court order and prosecute this

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action.” (Id. at 9, ¶ 2). On August 14, 2023, the August 2, 2023 Screening Order was returned

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undeliverable. (See docket). Per Local Rule 183(b) Plaintiff was required to update his address

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with the Court within 63 days of the mail being returned undeliverable. (E.D. Cal. 2022). As of

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the date of this Findings and Recommendation, Plaintiff has not filed an updated address as

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required by Local Rule 182(f) and the time to do so has expired. See docket.

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APPLICABLE LAW AND ANALYSIS
Plaintiff was obligated to keep this Court informed of his proper address. Specifically:

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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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Local Rule 183(b); see also Local Rule 182(f) (all parties are “under a continuing duty” to notify

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the clerk of “any change of address[.]”). Plaintiff was notified of his obligation to keep the Court

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informed of his address and advised that the Court would dismiss an action without prejudice if

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Plaintiff does not update his address within sixty-three (63) days. (Doc. No. 3, VIII.B.).

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Precedent supports a dismissal of a case when a litigant does not keep the court appraised on his

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address. Carey v. King, 856 F.2d 1439 (9th Cir. 1988) (affirming lower court and finding no

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abuse of discretion when district court dismissed case without prejudice after pro se plaintiff did

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not comply with local rule requiring pro se plaintiffs keep court apprised of addresses at all

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times); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal proper for failure to

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prosecute and comply with local rules of court); Hanley v. Opinski, 2018 WL 3388510 (E.D. Ca.

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July 10, 2018) (dismissing action for failure to prosecute and to provide court with current

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address); Davis v. Kern Valley State Prison, No. 1:22-CV-1489-JLT-EPG (PC), 2023 WL

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2992980, at *1, fn 1 (E.D. Cal. Apr. 18, 2023). More than sixty-three (63) days has passed since

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the Court’s August 2, 2023 Order was returned as undeliverable, and Plaintiff has not filed a

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notice of change of address.

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Accordingly, it is RECOMMENDED:

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This action be DISMISSED without prejudice for pursuant to Local Rule 183(b) for

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Plaintiff’s failure to prosecute this action.

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NOTICE

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

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of the date of service of these Findings and Recommendations, a party may file written objections

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with the Court. The document should be captioned, “Objections to Magistrate Judge’s Findings

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and Recommendations.” A party’s failure to file objections within the specified time may result in

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waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing

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Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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Dated:

October 16, 2023
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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