Gibbs v. Unnamed Defendant
Filing
5
OPINION and ORDER DISMISSING this action WITHOUT PREJUDICE pursuant to Local Rule 41.2 C. Signed by Judge William S. Duffey, Jr. on 1/30/2013. (dfb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ZACHARY GIBBS,
Petitioner,
v.
1:12-cv-4161-WSD
UNNAMED,
Respondent.
OPINION AND ORDER
This matter is before the Court following Magistrate Judge Linda T.
Walker’s Final Report and Recommendation (“R&R”) [2] regarding Zachary
Gibbs’ (“Petitioner”) pro se letter [1] and the Clerk of Court’s notification of mail
being returned as undeliverable [4].
I.
BACKGROUND
On November 27, 2012, Petitioner sent a pro se letter to the Court regarding
his confinement, which the Clerk of Court docketed as a civil rights complaint
pursuant to 28 U.S.C. § 1983 [1].
On December 7, 2012, the Magistrate Judge construed Petitioner’s letter as a
writ of habeas corpus under 28 U.S.C. § 2241, issued her Final R&R [2], and
recommended that this action be dismissed without prejudice because Petitioner
had not exhausted his available state remedies. (R&R at 1-3). A copy of the Final
R&R was mailed to Petitioner’s last-known address at the Cobb County Adult
Detention Center in Marietta, Georgia [3].
On December 31, 2012, the copy of the Final R&R that the Clerk of Court
had mailed to Petitioner was returned as “not deliverable to addressee” and “unable
to forward” because Petitioner was “not in custody” at the Cobb County Adult
Detention Center [4]. Since that date, Petitioner has not notified the Court of a
new address or filed any documents in this action.
II.
DISCUSSION
The Court’s Local Rules permit dismissal of an action without prejudice if a
party appearing pro se fails to keep the Court informed of any change in his
address and/or telephone number and such failure causes a delay or otherwise
adversely affects the management of the case. LR 41.2 C., NDGa.1
The Court determines that dismissal of this action without prejudice is
warranted due to Petitioner’s failure to keep the Court informed of his address. It
1
Local Rule 41.2 C. provides that
[t]he failure . . . of a party appearing pro se to keep the clerk’s office
informed of any change in address and/or telephone number which
causes a delay or otherwise adversely affects the management of the
case shall constitute grounds . . . for dismissal of the action without
prejudice.
2
is Petitioner’s responsibility to keep the Court properly informed of an address for
service and his failure to do so has adversely affected the case by preventing
service of the Final R&R and communication with him.2
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED this action is DISMISSED WITHOUT
PREJUDICE pursuant to Local Rule 41.2 C.
SO ORDERED this 30th day of January, 2013.
_________________________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE
2
The Court notes that even if Petitioner had kept the Court informed of his address
and filed objections to the Final R&R, the Court would find, on a de novo review,
that the findings and conclusions of the Magistrate Judge are correct and this action
should be dismissed based on Petitioner’s failure to exhaust state remedies.
3
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?