Elbert v. Swarthout et al
Filing
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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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