Burke v. Caldwell et al

Filing 38

ORDER DISMISSING CASE WITHOUT PREJUDICE. Signed by Judge Yvonne Gonzalez Rogers on 1/15/13. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 1/15/2013)

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1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 PATRICK D. BURKE, 5 Plaintiff, 6 7 No. C 11-02639 YGR (PR) ORDER OF DISMISSAL WITHOUT PREJUDICE vs. JOSE CALDWELL, Defendant. 8 / 9 United States District Court For the Northern District of California 10 Plaintiff, a state prisoner, filed the present pro se prisoner complaint under 42 U.S.C. ยง 1983. 11 On August 14, 2012, mail directed to Plaintiff by the Court was returned to the Clerk of the Court as 12 undeliverable with the following notation: "RETURN TO SENDER, ATTEMPTED -- NOT 13 KNOWN, UNABLE TO FORWARD." (Docket No. 35.) Accordingly, in an Order dated September 14 14, 2012, the Court determined that it was in the interests of justice and judicial efficiency for the 15 Court to establish Plaintiff's current address and whether he intended to continue to prosecute this 16 action. The Court informed Plaintiff that if he failed to do so within thirty days, this action would be 17 dismissed without prejudice for failure to prosecute. The Court then directed the Clerk to send its 18 September 14, 2012 Order to Plaintiff at his last-known address, and it further noted: "If this Order 19 is also returned as undeliverable, the Court will dismiss this action pursuant to Northern District 20 Local 21 Rule 3-11 after October 15, 2012 -- sixty days from August 14, 2012, the date the Court's July 20, 22 2012 Order was returned as undeliverable." (Sept. 14, 2012 Order at 3 (citing L.R. 3-11(b)).) 23 On October 5, 2012, the Court's September 14, 2012 Order was returned undeliverable with 24 the same notation indicated above: "RETURN TO SENDER, ATTEMPTED -- NOT KNOWN, 25 UNABLE TO FORWARD." (Docket No. 37.) 26 27 28 To date, Plaintiff has not updated his address with the Court or submitted any further pleadings in this case. 1 Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose address 2 changes while an action is pending must promptly file a notice of change of address specifying the 3 new address. See L.R. 3-11(a). The Court may dismiss without prejudice a complaint when: 4 (1) mail directed to the pro se party by the Court has been returned to the Court as not deliverable, 5 and (2) the Court fails to receive within sixty days of this return a written communication from the 6 pro se party indicating a current address. See L.R. 3-11(b). 7 More than sixty days have passed since the mail directed to Plaintiff by the Court was 8 returned as undeliverable on August 14, 2012 and October 5, 2012. The Court has not received a 9 notice from Plaintiff of a new address. Accordingly, the complaint is DISMISSED without United States District Court For the Northern District of California 10 prejudice pursuant to Rule 3-11 of the Northern District Local Rules. The Clerk of the Court shall 11 enter judgment, terminate all pending motions, and close the file. 12 13 IT IS SO ORDERED. DATED: January 15, 2013 YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 G:\PRO-SE\YGR\CR.11\Burke2639.3-11dism.wpd 2

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