(PC) Thornton v. Castillo ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SIMON THORNTON, Case No. 1:21-cv-00899-JLT-HBK (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS ACTION WITHOUT PREJUDICE 13 v. PURSUANT OT LOCAL RULE 182(b)1 14 A. CASTILLO, S. PINEADA, K. 14-DAY DEADLINE SANTORO, and K. ALLISON., 15 Defendants. 16 17 Plaintiff Simon Thornton is a state prisoner proceeding pro se in this civil rights action. 18 For the reasons set forth below, the undersigned recommends that the District Court dismiss this 19 action consistent with the Court’s Local Rule for Plaintiff’s failure to prosecute this action. 20 Specifically, Plaintiff failed to keep the Court appraised of a current address. 21 BACKGROUND 22 Plaintiff initiated this action by filing a civil rights complaint under 42 U.S.C. § 1983. 23 (Doc. No. 1, “Complaint”). On August 2, 2023, pursuant to 28 U.S.C. § 1915A the Court issued 24 a screening order finding the Complaint failed to state a claim against any of the named 25 Defendants. (See generally Doc. No. 13). The Court afforded Plaintiff three options: (1) file an 26 amended complaint; (2) file a notice that he intends to stand on his initial complaint subject to the 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2022). 1 undersigned recommending the district court dismiss for reasons stated in the August 2, 2023 2 Screening Order; or (3) file a notice to voluntarily dismiss this action, without prejudice, under 3 Federal Rule of Civil Procedure 41(a)(1) because no defendant had yet been served. (Id. at 8-9). 4 The Court expressly warned Plaintiff that if he “fails to timely respond to this Court Order or seek 5 an extension of time to comply” the undersigned “will recommend that the district court dismiss 6 this case as a sanction for Plaintiff’s failure to comply with a court order and prosecute this 7 action.” (Id. at 9, ¶ 2). On August 14, 2023, the August 2, 2023 Screening Order was returned 8 undeliverable. (See docket). Per Local Rule 183(b) Plaintiff was required to update his address 9 with the Court within 63 days of the mail being returned undeliverable. (E.D. Cal. 2022). As of 10 the date of this Findings and Recommendation, Plaintiff has not filed an updated address as 11 required by Local Rule 182(f) and the time to do so has expired. See docket. 12 APPLICABLE LAW AND ANALYSIS 13 Plaintiff was obligated to keep this Court informed of his proper address. Specifically: 14 [a] party appearing in propria persona shall keep the Court and opposing parties advised as to his or her current address. If mail 15 directed to a plaintiff in propria persona by the Clerk is returned by the U.S. Postal Service, and if such plaintiff fails to notify the Court 16 and opposing parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without prejudice 17 for failure to prosecute. 18 Local Rule 183(b); see also Local Rule 182(f) (all parties are “under a continuing duty” to notify 19 the clerk of “any change of address[.]”). Plaintiff was notified of his obligation to keep the Court 20 informed of his address and advised that the Court would dismiss an action without prejudice if 21 Plaintiff does not update his address within sixty-three (63) days. (Doc. No. 3, VIII.B.). 22 Precedent supports a dismissal of a case when a litigant does not keep the court appraised on his 23 address. Carey v. King, 856 F.2d 1439 (9th Cir. 1988) (affirming lower court and finding no 24 abuse of discretion when district court dismissed case without prejudice after pro se plaintiff did 25 not comply with local rule requiring pro se plaintiffs keep court apprised of addresses at all 26 times); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal proper for failure to 27 prosecute and comply with local rules of court); Hanley v. Opinski, 2018 WL 3388510 (E.D. Ca. 28 July 10, 2018) (dismissing action for failure to prosecute and to provide court with current 1 address); Davis v. Kern Valley State Prison, No. 1:22-CV-1489-JLT-EPG (PC), 2023 WL 2 | 2992980, at *1, fn 1 (E.D. Cal. Apr. 18, 2023). More than sixty-three (63) days has passed since 3 | the Court’s August 2, 2023 Order was returned as undeliverable, and Plaintiff has not filed a 4 | notice of change of address. 5 Accordingly, it is RECOMMENDED: 6 This action be DISMISSED without prejudice for pursuant to Local Rule 183(b) for 7 | Plaintiff's failure to prosecute this action. 8 NOTICE 9 These Findings and Recommendations will be submitted to the United States District 10 | Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within 14 days 11 || of the date of service of these Findings and Recommendations, a party may file written objections 12 || with the Court. The document should be captioned, “Objections to Magistrate Judge’s Findings 13 || and Recommendations.” A party’s failure to file objections within the specified time may result in 14 || waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 15 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 16 '7 | Dated: _ October 16, 2023 Wiha. □□ fares Zackte 18 HELENA M. BARCH-KUCHTA 9 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28