(PC) Rose v. Helms-Lewis ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD RAYNIOS ROSE, Case No. 1:23-cv-00498-HBK (PC) 12 Plaintiff, ORDER TO ASSIGN DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATIONS TO DISMISS CASE WITHOUT PREJUDICE FOR 14 KIMBERLY HELMS-LEWIS, NICOLE FAILURE TO PROSECUTE A. SILVEIRA, and VERNON H. 15 WRANKE, 14-DAY DEADLINE 16 Defendants. 17 18 19 Plaintiff Richard Raynios Rose, a prisoner, is proceeding pro se and in forma pauperis in 20 this action filed under 42 U.S.C. § 1983. (Doc. No. 8, “Complaint”). For the reasons set forth 21 below, the undersigned recommends that the District Court dismiss this action pursuant to this 22 Court’s Local Rule for Plaintiff’s failure to prosecute this action. Specifically, Plaintiff failed to 23 keep the Court appraised of a current address. 24 BACKGROUND 25 On April 24, 2023, the undersigned issued an order granting Plaintiff’s Motion to Proceed 26 in forma pauperis. (Doc. No. 10, “IFP Order”). On May 5, 2023, the IFP Order was returned as 27 “Undeliverable, Not in Custody.” See docket. Plaintiff’s change of address was due no later than 28 July 7, 2023. Local Rule 183(b). Plaintiff has not filed an updated address as required by Local 1 Rule 182(f) and the time to do so has expired. See docket. 2 APPLICABLE LAW AND ANALYSIS 3 Plaintiff was obligated to keep this Court informed of his proper address. Specifically: 4 [a] party appearing in propria persona shall keep the Court and opposing parties advised as to his or her current address. If mail 5 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 6 and opposing parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without prejudice 7 for failure to prosecute. 8 Local Rule 183(b); see also Local Rule 182(f) (all parties are “under a continuing duty” to notify 9 the clerk of “any change of address[.]”). Plaintiff was notified of his obligation to keep the Court 10 informed of his address in its First Informational Order in Prisoner/Civil Detainee Civil Rights 11 Case and advised that the Court would dismiss an action without prejudice if Plaintiff does not 12 update his address within sixty-three (63) days. (Doc. No. 3 at 5, VIII.B.). Precedent supports a 13 dismissal of a case when a litigant does not keep the court appraised on his address. Carey v. 14 King, 856 F.2d 1439 (9th Cir. 1988) (affirming lower court and finding no abuse of discretion 15 when district court dismissed case without prejudice after pro se plaintiff did not comply with 16 local rule requiring pro se plaintiffs keep court apprised of addresses at all times); Henderson v. 17 Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal proper for failure to prosecute and 18 comply with local rules of court); Hanley v. Opinski, 2018 WL 3388510 (E.D. Ca. July 10, 2018) 19 (dismissing action for failure to prosecute and to provide court with current address); Davis v. 20 Kern Valley State Prison, No. 1:22-CV-1489-JLT-EPG (PC), 2023 WL 2992980, at *1, fn 1 21 (E.D. Cal. Apr. 18, 2023). More than sixty-three (63) days has passed since the Court’s March 22 23, 2023 Order was returned as undeliverable, and Plaintiff has not filed a notice of change of 23 address. 24 Accordingly, it is ORDERED: 25 The Clerk of Court shall randomly assign this case to a district judge for consideration of 26 these Findings and Recommendations. 27 It is further RECOMMENDED: 28 This case be dismissed without prejudice pursuant to Local Rule 183(b) for Plaintiff’s 1 | failure to prosecute this action. 2 NOTICE TO PARTIES 3 These findings and recommendations will be submitted to the United States district judge 4 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 5 | days after being served with these findings and recommendations, a party may file written 6 | objections with the court. The document should be captioned “Objections to Magistrate Judge’s 7 | Findings and Recommendations.” Parties are advised that failure to file objections within the 8 || specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 9 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 10 "| Dated: __July 10, 2023 Mihaw. □□□ foareh Yack 12 HELENA M. BARCH-KUCHTA 3 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28