Opinion
2:20-cv-01322-KJM-DMC-P
08-18-2023
CLYDE DAVID CARTER, Plaintiff, v. B. COX, Defendant.
ORDER
Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided by Eastern District of California local rules.
On June 6, 2023, the Magistrate Judge filed findings and recommendations, which were served on the parties and contained notice that the parties may file objections within the time specified therein. No objections have been filed.
Although it appears from the file that plaintiff's copy of the findings and recommendations was returned, plaintiff was properly served. It is the plaintiff's responsibility to keep the court apprised of his current address at all times. Pursuant to Local Rule 182(f), service of documents at the record address of the party is fully effective.
The court presumes that any findings of fact are correct. See Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979). The magistrate judge's conclusions of law are reviewed de novo. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir. 2007) (“[Determinations of law by the magistrate judge are reviewed de novo by both the district court and [the appellate] court . . . .”). Having reviewed the file, the court declines to adopt the findings and recommendations for two reasons.
First, the magistrate judge stayed this action in August of 2021. Order, ECF No. 20. The magistrate judge explained that, in light of a pending criminal case against the plaintiff for the same incident at issue in this civil case, the matter should be stayed until the completion of the criminal case. Id. The magistrate judge ordered the defense to file status reports on the criminal case every 60 days, see id., and the criminal case is apparently ongoing, seeStatus Report (Apr. 13, 2023), ECF No. 34 (noting a discovery hearing is calendared for December 8, 2023, in the criminal case, with no other scheduled events). This matter remains stayed. As a result, in order to proceed with ruling on defendant's pending motion to dismiss, see Mot., ECF No. 31, the court would need to lift the stay. The court refers the matter back to the magistrate judge to consider whether the stay should be lifted.
Second, the findings and recommendations are based in part on defendant's representation that he does not know plaintiff's current mailing address and that plaintiff has not filed a notice of change of address. See Findings and Recommendations at 2, ECF No. 35; Mot. at 2 (“Counsel for Officer Cox is unaware of Carter's current mailing address.”). But there is an ongoing criminal case against plaintiff, which defendant has monitored closely. There are no allegations about plaintiff's appearance in that case, whether plaintiff is detained or released pending trial, and whether the Lassen County Superior Court has plaintiff's present address. In light of the seriousness of the sanction of dismissal, and these outstanding factual issues, the court refers the matter back to the magistrate judge to consider whether dismissal is appropriate.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed June 6, 2023, are NOT adopted; and
2. This matter is referred to the magistrate judge to consider whether the stay should be lifted, whether dismissal is appropriate, and for all further pretrial proceedings consistent with this order.