Opinion
2:22-CV-1637-LK-DWC
02-10-2023
ROBERT ANDREW KIRKHAM, Plaintiff, v. BRANDON GLOOR, et al., Defendants.
Noting Dated: March 3, 2023
REPORT AND RECOMMENDATION
David W. Christel United States Magistrate Judge
The District Court has referred this action filed under 42 U.S.C. § 1983 to United States Magistrate Judge David W. Christel. Plaintiff Robert Andrew Kirkham, proceeding pro se and in forma pauperis, initiated this civil rights action on November 14, 2022. See Dkt. 1. As Plaintiff has failed to file a second amended complaint and failed to keep the Court advised of his current address, the Court recommends dismissing this action without prejudice.
The relevant procedural history shows that, on November 28, 2022, the Court declined to serve Plaintiff's Complaint and directed Plaintiff to file an amended complaint (“Order”). Dkt. 6. The Court warned that it would recommend this case be dismissed if Plaintiff failed to file a response to the Order by December 30, 2022. Id.
On November 28, 2022, a letter sent to Plaintiff by the Clerk's Office was returned as undeliverable. Dkt. 7. The Court directed Plaintiff to notify the Court of his current mailing address on or before January 27, 2023. Dkt. 9. The Court warned Plaintiff that failure to notify the Court of his updated address by the deadline would result in a recommendation of dismissal. Id. The Order directing Plaintiff to update his address was also returned to the Court as undeliverable. Dkt. 10.
Plaintiff has failed to comply with the Court's Orders. He has not filed an amended complaint, which was due on December 30, 2022, correcting the deficiencies contained within the Complaint. Additionally, he has not provided the Court with his current address. As Plaintiff has failed to respond to the Court's Orders and prosecute this case, the Court recommends this case be dismissed without prejudice and all pending motions, including the motion requesting Court-appointed counsel (Dkt. 5), be denied as moot. Furthermore, as Plaintiff has failed to state a claim upon which relief can be granted, the Court recommends this case count as a “strike.” See 28 U.S.C. 1915(g).
Pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days from service of this report to file written objections. See also Fed.R.Civ.P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge, see 28 U.S.C. § 636(b)(1)(C), and can result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 142 (1985); Miranda v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012) (citations omitted). Accommodating the time limit imposed by Fed.R.Civ.P. 72(b), the Clerk is directed to set the matter for consideration on March 3, 2023, as noted in the caption.