(PC) McGee v. Galager ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHNNY MCGEE, Case No. 1:21-cv-00837-KES-HBK (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DISMISS CASE WITHOUT PREJUDICE FOR 13 v. FAILURE TO PROSECUTE 14 GALAGER, PATTERSON, YOKUM and 14-DAY DEADLINE WRIGHT, 15 Defendants. 16 17 Plaintiff Johnny McGee initiated this action as a state prisoner by filing a pro se civil 18 rights complaint under 42 U.S.C. § 1983 and proceeds on his Second Amended Complaint. (Doc. 19 No. 21, “FAC”). For the reasons set forth below, the undersigned recommends that the District 20 Court dismiss this action consistent with the Court’s Local Rules for Plaintiff’s failure to 21 prosecute this action. Specifically, Plaintiff failed to keep the Court apprised of a current address 22 and this action remains stagnant. 23 BACKGROUND 24 On June 18, 2024, the undersigned issued a screening order on Plaintiff’s Second 25 Amended Complaint, directing Plaintiff to either (1) file a notice to proceed on the claims found 26 cognizable in the Court’s screening order and voluntarily dismiss the remaining claims and 27 defendants, or (2) file a notice to stand on the SAC subject to the undersigned recommending 28 1 dismissal of certain claims and defendants, as set forth in the Court’s screening order. (Doc. No. 2 29 at 7). On July 10, 2024 the mail containing the Order was returned “Undeliverable, RTS, 3 Attempted-Not Known, Unable to Forward.” See docket. Plaintiff’s change of address was due 4 no later than September 11, 2024. Local Rule 183(b). Plaintiff has not filed an updated address 5 as required by Local Rule 182(f) and the time to do so has expired. See docket. 6 APPLICABLE LAW AND ANALYSIS 7 Plaintiff was obligated to keep this Court informed of his proper address. Specifically: 8 [a] party appearing in propria persona shall keep the Court and opposing parties advised as to his or her current address. If mail 9 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 10 and opposing parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without prejudice 11 for failure to prosecute. 12 Local Rule 183(b); see also Local Rule 182(f) (all parties are “under a continuing duty” to notify 13 the clerk of “any change of address[.]”). Plaintiff was notified of his obligation to keep the Court 14 informed of his address and advised that the Court would dismiss an action without prejudice if 15 Plaintiff does not update his address within sixty-three (63) days. (Doc. No. 4, VIII.B.). 16 Precedent supports a dismissal of a case when a litigant does not keep the court appraised on his 17 address. Carey v. King, 856 F.2d 1439 (9th Cir. 1988) (affirming lower court and finding no 18 abuse of discretion when district court dismissed case without prejudice after pro se plaintiff did 19 not comply with local rule requiring pro se plaintiffs keep court apprised of addresses at all 20 times); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal proper for failure to 21 prosecute and comply with local rules of court); Hanley v. Opinski, 2018 WL 3388510 (E.D. Ca. 22 July 10, 2018) (dismissing action for failure to prosecute and to provide court with current 23 address); Davis v. Kern Valley State Prison, 2023 WL 2992980, at *1, n. 1 (E.D. Cal. Apr. 18, 24 2023). More than sixty-three (63) days have passed since the Court’s October 23, 2023 Order 25 was returned as undeliverable, and Plaintiff has not filed a notice of change of address.1 26 //// 27 1 As of the date of these Findings and Recommendations seventy-one (71) days have passed since the mail 28 was returned as undeliverable. 1 Accordingly, it is hereby RECOMMENDED: 2 This case be dismissed without prejudice pursuant to Local Rule 183(b) for Plaintiff's 3 | failure to prosecute this action. 4 NOTICE TO PARTIES 5 These findings and recommendations will be submitted to the United States district judge 6 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 7 | days after being served with these findings and recommendations, a party may file written 8 | objections with the court. The document should be captioned “Objections to Magistrate Judge’s 9 | Findings and Recommendations.” Parties are advised that failure to file objections within the 10 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 11 | 838-39 (Oth Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 12 8 Dated: _ September 19, 2024 oe Zh. Sareh Zackte 14 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28