(PC) Thomas v. Stringer ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FLOYD ROBERT THOMAS, No. 1:22-cv-00174 NODJ GSA (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS ORDER 13 v. ORDER RECOMMENDING MATTER BE 14 B. STRINGER, DISMISSED FOR FAILURE TO PROSECUTE AND FAILURE TO OBEY 15 Defendant. COURT ORDER 16 (ECF No. 12) 17 PLAINTIFF’S OBJECTIONS DUE MARCH 8 2024 18 19 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 20 under 42 U.S.C. § 1983. Plaintiff has paid the filing fee. The matter was referred to a United 21 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. For the 22 reasons stated below, the undersigned will recommend that this matter be dismissed for failure to 23 prosecute and for failure to obey a court order. 24 I. RELEVANT FACTS 25 On December 1, 2023, an order informing Plaintiff that the District Judge who had 26 originally been assigned to this case had been elevated to a position on the Ninth Circuit Court of 27 Appeals and that as a result, this case was to be reassigned to “No District Court Judge” status. 28 1 ECF No. 11. On December 14, 2023, the Court’s order was returned as “Undeliverable, Inactive, 2 Return to Sender, Refused, Unable to Forward.” As a result Plaintiff had sixty-three days from 3 that date – or, until February 2, 2024, – to file his change of address information with the Court. 4 See Local Rule 183(b). 5 By February 15, 2024, Plaintiff had still not filed his change of address information with 6 the Court. As a result, in an abundance of caution, the Court issued an order specifically directing 7 Plaintiff to file a change of address form with it and to do so within seven days. ECF No. 12 at 2. 8 At that time, Plaintiff was warned that his failure to file the form would result in a 9 recommendation that this matter be dismissed for failure to prosecute. Id. As of today, February 10 23, 2024, Plaintiff has neither filed a change of address, or responded to the Court’s order. 11 II. DISCUSSION 12 Local Rule 183 requires a party who is appearing in propria persona to keep the Court 13 informed of his or her current address. L.R. 183(b). It also gives the litigant sixty-three days to 14 file a change of address form with the Court once mail sent to him/her has been returned. Id. 15 Under the rule, a litigant’s failure to provide a change of address to the Court within this period 16 subjects the matter to dismissal for failure to prosecute. Id. 17 Although Plaintiff’s copy of the Court’s December 1, 2023, order was returned on 18 December 14, 2023, Plaintiff was properly served. It is Plaintiff’s responsibility to keep the 19 Court apprised of his current address at all times. Pursuant to Local Rule 182(f), service of 20 documents at the record address of a party is fully effective. 21 Given that Plaintiff has neither filed a change of address form with the Court within the 22 sixty-three-day period in accord with Local Rule 183(b), or responded to the Court’s subsequent 23 order which specifically directed him to do so, the undersigned will recommend that this matter 24 be dismissed without prejudice for failure to prosecute and for failure to obey a court order. 25 Plaintiff will be given fourteen days to file objections. However, his filing of a current address 26 form with the Court within this period will result in a vacation of these findings and 27 recommendations. 28 Accordingly, IT IS HEREBY RECOMMENDED that this matter be DISMISSED without 1 prejudice for failure to prosecute and for failure to obey a court order. See Fed. R. Civ. P. 41(b); 2 Local Rule 110. 3 Should Plaintiff file a change of address in this matter within the fourteen-day 4 period given to file objections, this order will be vacated, and Plaintiff will be permitted to 5 proceed in this action. 6 These findings and recommendations are submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 8 after being served with these findings and recommendations – by March 8, 2024, – Plaintiff may 9 file written objections with the Court. Such a document should be captioned “Objections to 10 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 11 objections within the specified time may waive the right to appeal the District Court’s order. 12 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 14 IT IS SO ORDERED. 15 16 Dated: February 23, 2024 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28