Hyman v. Miller et al

Filing 117

ORDER granting 116 Motion for Status Update. Plaintiff shall have ten days from service of this Order in which to notify the Court of his change in address. If Plaintiff fails to respond to this Order within ten days, the remaining claim in this action will be dismissed without prejudice and without notice to Plaintiff. Signed by Chief Judge Frank D. Whitney on 3/25/2019. (Pro se litigant served by US Mail.)(nvc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:16-cv-62-FDW
DEVIN HYMAN,

)
)
Plaintiff,
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vs.
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FNU MILLER, et al.,
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)
Defendants.
)
__________________________________________)

ORDER

THIS MATTER is before the Court on periodic status review following the return of mail
sent to Plaintiff’s listed address as undeliverable, and on Defendants’ Motion for Status Update,
(Doc. No. 116). On March 5, 2019, the Court granted summary judgment to Defendants on all but
one excessive force claim brought by Plaintiff in this action. (Doc. No. 114). Plaintiff’s current
address is listed on the docket report as Maury Correctional Institution. On March 14, 2019, the
Court received notice that this Court’s order was being returned as undeliverable, as Plaintiff is no
longer at that address. (Doc. No. 115). The North Carolina Department of Public Safety website
indicates that Plaintiff was released from prison on April 19, 2018. There is no updated address
for the Court to contact Plaintiff.
Plaintiffs have a general duty to prosecute their cases. In this regard, a pro se plaintiff must
keep the Court apprised of his current address. See Carey v. King, 856 F.2d 1439, 1441 (9th Cir.
1988) (“A party, not the district court, bears the burden of keeping the court apprised of any
changes in his mailing address.”). Where a pro se plaintiff has failed to notify the Court of his
change of address, the action is subject to dismissal without prejudice for failure to prosecute.
Accord Walker v. Moak, Civil Action No. 07-7738, 2008 WL 4722386 (E.D. La. Oct. 22, 2008)
1

(dismissing without prejudice a § 1983 action for failure to prosecute under Rule 41(b) of the
Federal Rules of Civil Procedure where the plaintiff did not notify the court of his new address
upon his release from jail). Before dismissing this action for failure to prosecute, the Court will
give Plaintiff ten days in which to notify the Court of his updated address. 1
IT IS, THEREFORE, ORDERED that:
1.

Plaintiff shall have ten days from service of this Order in which to notify the Court
of his change in address. If Plaintiff fails to respond to this Order within ten days,
the remaining claim in this action will be dismissed without prejudice and without
notice to Plaintiff.

2.

The Clerk is directed to mail this Order to Plaintiff’s address as listed on the Court’s
docket report.

3.

Defendants’ Motion for Status Update, (Doc. No. 116), is GRANTED.

Signed: March 25, 2019

1

Of course, since Plaintiff is no longer incarcerated at Maury Correctional Institution, this
Order will likely be returned as undeliverable. Nevertheless, this Order serves as an official
warning to Plaintiff before the Court dismisses this action for failure to prosecute.
2