Elbert v. Swarthout et al

Filing 37

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 3/25/13 recommending that this action be dismissed. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VIRGIL ROBERT ELBERT,
Plaintiff,

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vs.
GARY SWARTHOUT, et al.,
Defendants.

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FINDINGS AND RECOMMENDATIONS
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No. 2:11-cv-1154 GEB EFB P

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42
U.S.C. § 1983.
On January 16, 2013, the postal service returned documents directed to plaintiff as

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“undeliverable, RTS - Paroled 12/13/2012.” A party appearing without counsel must keep the

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court and all parties apprised of his current address. L.R. 183(b). If mail directed to a plaintiff is

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returned by the postal service and plaintiff fails to notify the court and opposing parties within 63

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days thereafter of her current address, the court may dismiss the action without prejudice for

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failure to prosecute. Id. More than 63 days have passed since the postal service returned the

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mail and plaintiff has not notified the court of his current address.

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Further, plaintiff has failed to respond to defendant’s February 19, 2013 motion to

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compel. In cases in which one party is incarcerated and proceeding without counsel, motions

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ordinarily are submitted on the record without oral argument. Local Rule 230(l). “Opposition, if
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any, to the granting of the motion shall be served and filed with the Clerk by the responding

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party not more than eighteen (18) days, plus three (3) days for mailing or electronic service, after

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the date of service of the motion.” Id. A responding party’s failure “to file written opposition or

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to file a statement of no opposition may be deemed a waiver of any opposition to the granting of

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the motion and may result in the imposition of sanctions.” Id.

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Furthermore, a party’s failure to comply with any order or with the Local Rules “may be

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grounds for imposition of any and all sanctions authorized by statute or Rule or within the

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inherent power of the Court.” Local Rule 110. The court may recommend that an action be

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dismissed with or without prejudice, as appropriate, if a party disobeys an order or the Local

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Rules. See Ferdik v. Bonzelet, 963 F.2d 1258, 1263 (9th Cir. 1992) (district court did not abuse

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discretion in dismissing pro se plaintiff’s complaint for failing to obey an order to re-file an

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amended complaint to comply with Federal Rules of Civil Procedure); Carey v. King, 856 F.2d

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1439, 1440-41 (9th Cir. 1988) (dismissal for pro se plaintiff’s failure to comply with local rule

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regarding notice of change of address affirmed).

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Accordingly, it is hereby RECOMMENDED that this action be dismissed. See Fed. R.
Civ. P. 41(b); L.R. 110, 183(b).

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These findings and recommendations are submitted to the United States District Judge

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

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: March 25, 2013.

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