Nesbeth v. Obama et al

Filing 8

ORDER denying 7 Request to Appoint Plaintiff's Wife as his Representative, and Order of Dismissal. This action is dismissed without leave to amend. Signed by Judge Larry Alan Burns on 1/22/15. (All non-registered users served via U.S. Mail Service)(kas)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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NEZIAH IGNATIUS NESBETH,

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CASE NO. 14cv2450-LAB (WVG)

Plaintiff(s),

ORDER DENYING REQUEST TO
APPOINT PLAINTIFF’S WIFE AS HIS
REPRESENTATIVE; AND

vs.
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BARACK OBAMA, et al.,

ORDER OF DISMISSAL
Defendant(s).

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Plaintiff Neziah Nesbeth filed his civil rights complaint in this case on October 14,

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2014. At the time, he was a prisoner in federal custody in this District. On November 13, the

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Court granted his motion for leave to proceed in forma pauperis, screened the complaint,

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and dismissed it for failing to state a claim. That order gave him 45 days to reopen the case

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by filing an amended complaint.

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On November 19, the Court’s order was returned as undeliverable, with the

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annotation that Nesbeth was no longer in custody. Civil Local Rule 83.11(b) requires parties

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proceeding pro se to keep the Court advised as to their current address.

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On January 21, 2015, the Court accepted by discrepancy order a document received

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in the Clerk’s office on January 15, and styled “Power of Attorney Consent and Change of

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Address.” That document said nothing about an amended complaint, but instead purported

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to give his wife, Cheryl Nesbeth, power of attorney to litigate this case. That same document

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says his current address is the same as his wife’s, in Kissimmee, Florida, which confirms that

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he is in fact no longer in custody.

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Nesbeth’s request to have his wife litigate this case for him is DENIED. See Civil

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Local Rule 83.11(a) (providing that any person appearing pro se cannot delegate litigation

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duties to others, including spouses). Nor can she substitute in as counsel of record, because

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she is not admitted to practice before this Court. A review of public records she is also not

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admitted to practice in California.

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While Nesbeth never received the Court’s order of November 13, 2014 in the mail,

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the fact that he did not resulted from his violation of local rules, and was his own fault.

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Furthermore, because he has been released from custody (apparently no later than

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November 19, 2014), he is no longer entitled to the benefit of the “prisoner mailbox rule” or

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any of the other procedural protections afforded to prisoners. Being out of custody, he would

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have found it relatively easy to check the docket and follow the progress of the case.

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Moreover, it was his obligation to do so. See Witty v. Dukakis, 3 F.3d 517, 520–21 (1st Cir.

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1993) (citing the “abecedarian rule of civil practice [that] parties to an ongoing case have an

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independent obligation to monitor all developments in the case and cannot rely on the clerk’s

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office to do their homework for them”); Civil Local Rule 16.1(b) (providing that pro se litigants

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“must proceed with diligence to take all steps necessary to bring an action to readiness for

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trial”). See also Powell v. Smith, 2011 WL 4527412, at *2 (E.D.Cal., Sept. 28, 2011) (holding

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that pro se prisoner’s failure to check the docket did not excuse failure to comply with time

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limits).

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Because Nesbeth did not file an amended complaint within the time permitted, in

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order to reopen this case (see Docket no. 4), this action is DISMISSED WITHOUT LEAVE

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TO AMEND. The Clerk is directed to close the docket.

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IT IS SO ORDERED.
DATED: January 22, 2015

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HONORABLE LARRY ALAN BURNS
United States District Judge
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