McCurdy v. Simpson

Filing 53

ORDER DISMISSING CASE. Signed by Judge Judge Jeremy Fogel on 6/5/09. (dlm, COURT STAFF) (Filed on 6/19/2009)

Download PDF
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOT FOR CITATION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA REX MCCURDY, Plaintiff, vs. GARY SIMPSON, et al., Defendants. ) ) ) ) ) ) ) ) ) ) No. C 06-02830 JF (PR) ORDER OF DISMISSAL Plaintiff filed the instant pro se civil rights complaint under 42 U.S.C. § 1983. A copy of the Court's "Order Addressing Pending Motions" (Docket No. 50) was mailed to Plaintiff at his last known address, but the order was returned on March 31, 2009, as undeliverable because Plaintiff was no longer in custody. (See Docket No. 51.) The Court ordered Plaintiff by order filed April 29, 2009, to inform the Court of his current address no later than thirty days from the date the order was filed. Plaintiff was advised that failure to timely do so shall result in dismissal of this action without prejudice under Federal Rule of Civil Procedure 41(b) and Local Rule 3-11(b). The time has since passed, and Plaintiff has failed to comply. Pursuant to Federal Rule of Civil Procedure 41(b), a district court may sua sponte dismiss an action for failure to prosecute or to comply with a court order. See Link v. Order of Dismissal P:\PRO-SE\SJ.JF\CR.06\McCurdy830_3-11dism.wpd 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Wabash R.R., 370 U.S. 626, 633 (1962); McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991). But such a dismissal should only be ordered when the failure to comply is unreasonable. See id. A district court should afford the litigant prior notice of its intention to dismiss. See Malone v. United States Postal Serv., 833 F.2d 128, 133 (9th Cir. 1987). Pursuant to Northern District Local Rule 3-11 a party proceeding pro se must promptly file a notice of change of address while an action is pending. See L.R. 3-11(a). The Court may, without prejudice, dismiss a complaint when: (1) mail directed to the pro se party by the Court has been returned to the Court as not deliverable, and (2) the Court fails to receive within sixty days of this return a written communication from the pro se party indicating a current address. See L.R. 3-11(b). Plaintiff has failed to comply with the Court's order to provide his current address, and provided with notice of the Court's intention to dismiss. Furthermore, more than sixty days have passed since the Court's orders addressed to Plaintiff were returned as undeliverable, and the Court has not received a notice from Plaintiff of a new address. Accordingly, the instant civil rights action is DISMISSED without prejudice pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule 3-11(b) of the Northern District Local Rules. IT IS SO ORDERED. 6/5/09 DATED: JEREMY FOGEL United States District Judge Order of Dismissal P:\PRO-SE\SJ.JF\CR.06\McCurdy830_3-11dism.wpd 2 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA REX A. MCCURDY, Plaintiff, v. GARY L. SIMPSON, et al., Defendants. / Case Number: CV06-02830 JF CERTIFICATE OF SERVICE I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. , I SERVED a true and correct copy(ies) of the attached, That on 6/19/09 by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. Rex A. McCurdy 000035-6 Napa County Jail 1111 Third Street Napa, CA 94559 Dated: 6/19/09 Richard W. Wieking, Clerk

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?