(PC) James v. Riley et al

Filing 13

ORDER to Assign a District Judge; FINDINGS and RECOMMENDATIONS to Dismiss Action Without Prejudice Pursuant to Local Rule 182(b), signed by Magistrate Judge Helena M. Barch-Kuchta on 11/9/2023. Objections to F&R due within FOURTEEN DAYS. (Marrujo, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANDRE LAMAR JAMES, 12 Plaintiff, 13 14 v. RILEY and GUTIERREZ, 15 Defendants. Case No. 1:22-cv-00625-HBK (PC) ORDER TO ASSIGN A DISTRICT JUDGE FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION WITHOUT PREJUDICE PURSUANT TO LOCAL RULE 182(b)1 14-DAY DEADLINE 16 17 Plaintiff Andre Lamar James is a state prisoner proceeding pro se in this civil rights 18 action. For the reasons set forth below, the undersigned recommends that the District Court 19 dismiss this action consistent with the Court’s Local Rule for Plaintiff’s failure to prosecute this 20 action. Specifically, Plaintiff failed to keep the Court apprised of a current address. 21 BACKGROUND 22 Plaintiff initiated this action by filing a civil rights complaint under 42 U.S.C. § 1983. 23 (Doc. No. 1, “Complaint”). On August 21, 2023, pursuant to 28 U.S.C. § 1915A the Court issued 24 a screening order. (Doc. No. 11 at 1). The Court afforded Plaintiff three options to exercise by 25 September 21, 2023: (1) file an amended complaint; (2) file a notice that he intends to stand on 26 27 1 28 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). 1 his initial complaint subject to the undersigned recommending the district court dismiss certain 2 claims and Defendants; or (3) stand on his Complaint subject to the undersigned recommending 3 the district court dismiss certain claims and Defendants. (Id. at 9-10). The Court expressly 4 warned Plaintiff that if he “fails to timely respond to this Court Order or seek an extension of time 5 to comply” the undersigned “will recommend that the district court dismiss this case as a sanction 6 for Plaintiff’s failure to comply with a court order and prosecute this action.” (Id. at 10 ¶ 2). On 7 August 31, 2023, the August 21, 2023 Screening Order was returned undeliverable. (See docket). 8 Per Local Rule 183(b) Plaintiff was required to update his address with the Court within 63 days 9 of the mail being returned undeliverable. (E.D. Cal. 2022). As of the date of this Findings and 10 Recommendation, Plaintiff has not filed an updated address as required by Local Rule 182(f) and 11 the time to do so has expired. See docket. 12 13 14 APPLICABLE LAW AND ANALYSIS Plaintiff was obligated to keep this Court informed of his proper address. Specifically: 17 [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. 18 Local Rule 183(b); see also Local Rule 182(f) (all parties are “under a continuing duty” to notify 19 the clerk of “any change of address[.]”). Plaintiff was notified of his obligation to keep the Court 20 informed of his address and advised that the Court would dismiss an action without prejudice if 21 Plaintiff does not update his address within sixty-three (63) days. (Doc. No. 3, VIII.B.). 22 Precedent supports a dismissal of a case when a litigant does not keep the court appraised on his 23 address. Carey v. King, 856 F.2d 1439 (9th Cir. 1988) (affirming lower court and finding no 24 abuse of discretion when district court dismissed case without prejudice after pro se plaintiff did 25 not comply with local rule requiring pro se plaintiffs keep court apprised of addresses at all 26 times); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal proper for failure to 27 prosecute and comply with local rules of court); Hanley v. Opinski, 2018 WL 3388510 (E.D. Ca. 28 July 10, 2018) (dismissing action for failure to prosecute and to provide court with current 15 16 2 1 address); Davis v. Kern Valley State Prison, 2023 WL 2992980, at *1, fn 1 (E.D. Cal. Apr. 18, 2 2023). More than sixty-three (63) days has passed since the Court’s August 21, 2023 Order was 3 returned as undeliverable, and Plaintiff has not filed a notice of change of address. 4 Accordingly, it is ORDERED: 5 The Clerk of Court is directed to assign a district judge to this case. 6 It is further RECOMMENDED: 7 This action be DISMISSED without prejudice for pursuant to Local Rule 183(b) for 8 Plaintiff’s failure to prosecute this action. 9 NOTICE 10 These Findings and Recommendations will be submitted to the United States District 11 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 12 of the date of service of these Findings and Recommendations, a party may file written objections 13 with the Court. The document should be captioned, “Objections to Magistrate Judge’s Findings 14 and Recommendations.” A party’s failure to file objections within the specified time may result in 15 waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 16 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 17 18 Dated: November 9, 2023 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 3

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