Opinion
No. CV 14-7139-VAP (PLA)
02-24-2016
MARCUS WADE, Plaintiff, v. B. LINDSEY, Defendant.
ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
I.
INTRODUCTION
On January 19, 2016, the United States Magistrate Judge issued a Report and Recommendation ("R&R"), recommending that defendant's Motion for Summary Judgment be granted and this action dismissed without prejudice but without leave to amend for failure to exhaust administrative remedies. Plaintiff's objections to the R&R were due no later than February 8, 2016. On February 4, 2016, both the R&R and the Notice of Filing of Magistrate Judge's Report and Recommendation were returned to the Court, and the envelopes contained the notations "RTS" (return to sender) and "parole." / /
II.
DISCUSSION
In addition to failing to exhaust administrative remedies as set forth in the R&R, plaintiff's failure to notify the Court of his whereabouts constitutes a separate ground warranting dismissal of this action. Plaintiff has failed to comply with the Local Rule of the United States District Court for the Central District of California that requires him to keep the Court informed of any change of address:
Dismissal -- Failure of Pro Se Plaintiff to Keep Court Apprised of Current Address. A party proceeding pro se shall keep the Court and opposing parties apprised of such party's current address and telephone number, if any, and e-mail address, if any. If mail directed by the Clerk to a pro se plaintiff's address of record is returned undelivered by the Postal Service, and if, within fifteen (15) days of the service date, such plaintiff fails to notify, in writing, the Court and opposing parties of said plaintiff's current address, the Court may dismiss the action with or without prejudice for want of prosecution.Local Rule 41-6.
Here, the Magistrate Judge's R&R and Notice were returned to the Court with notations indicating that plaintiff was no longer in custody. Plaintiff was required, therefore, to notify the Court of his current address no later than February 3, 2016, pursuant to Local Rule 41-6. As of the date of this Order, he has failed to do so. In affirming the district court's dismissal of a case for failure to prosecute, the Ninth Circuit has observed that "[i]t would be absurd to require the district court to hold a case in abeyance indefinitely just because it is unable, through the plaintiff's own fault, to contact the plaintiff to determine if his reasons for not prosecuting his lawsuit are reasonable or not." Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988). Plaintiff's failure to keep the Court apprised of his current address renders this case indistinguishable from Carey.
III.
CONCLUSION
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Complaint, the other records on file herein, and the Magistrate Judge's Report and Recommendation. The Court accepts the recommendations of the Magistrate Judge.
ACCORDINGLY, IT IS ORDERED:
1. The Report and Recommendation is accepted; and
2. Defendant's Motion for Summary Judgment is granted, and the Complaint is dismissed without prejudice but without leave to amend.
3. The clerk shall serve this Order on all counsel or parties of record. DATED: February 24, 2016
/s/_________
HONORABLE VIRGINIA A. PHILLIPS
UNITED STATES DISTRICT JUDGE