Opinion
CIVIL 3:23-CV-375
11-22-2023
CRAIG ALAN TOAZ, Plaintiff, v. ZACHARY ALBRIGHT, et al., Defendants.
(Chief Judge Brann)
REPORT AND RECOMMENDATION
MARTIN C. CARLSON, UNITED STATES MAGISTRATE JUDGE
I. Statement of Facts and of the Case.
This case asks the following question: How can the court conduct litigation with a pro se plaintiff whose whereabouts are unknown and with whom we have no means of communicating? Concluding that we cannot undertake litigation in this setting, and that the plaintiff's failure to provide us with any means of communication violates the rules of this court and frustrates our ability to resolve this case, for the reasons set forth below, it is recommended that this complaint be dismissed.
This civil rights case was filed on March 2, 2023. (Doc. 1). At that time the plaintiff, who was proceeding pro se, received a copy of correspondence from the court which placed him on notice of his obligation to provide the court with an address where he can be reached and was warned that if the court was unable to communicate with the plaintiff because the plaintiff has failed to notify the court of his or her address, the plaintiff's case may be dismissed. (Doc. 4-1, at 3-4).
Despite this clear notice, on November 17, 2023, correspondence mailed to the plaintiff was returned as undeliverable. (Doc. 8). Accordingly, on November 20, 2023, we placed the plaintiff on notice as follows: As a pro se litigant the plaintiff's failure to maintain an address where he can be reached itself violated the rules of this court; specifically, Local Rule 83.18, which provides that:
LR 83.18 Appearance of Parties Not Represented by Counsel.
Whenever a party by whom or on whose behalf an initial paper is offered for filing is not represented in the action, such party shall maintain on file with the clerk a current address at which all notices and copies of pleadings, motions or papers in the action may be served upon such party.
We then advised Toaz in clear and precise terms as follows:
Therefore, IT IS ORDERED that the plaintiff comply with Local Rule 83.18 on or before December 4, 2023 by providing us with an address where we can communicate with the plaintiff or face the sanction provided under that rule, dismissal of this case.(Doc. 9, at 2-3).
A copy of our November 20 order which was mailed to Toaz at the address he provided to the court has now been returned as undeliverable. (Doc. 10). Therefore, Toaz is in violation of the Local Rules of this court, and we lack the ability to communicate with this litigant. The plaintiff's non-compliance with the rules of this court now stymies any efforts to litigate his claims. Accordingly, for the reasons set forth below, it is recommended that this case be dismissed.
II. Discussion
Under the Local Rules of this Court, the plaintiff should be deemed to have abandoned this lawsuit by failing to provide the court with an address where he can be reached, a direct violation of Local Rule 83.18. The plaintiff's ongoing violation of Local Rule 83.18 permits the court to find that he has abandoned this litigation. In this circumstance, dismissal of this action for failure to abide by court orders or the rules of this court, and failure to prosecute, is fully justified. See, e.g., Juaquee v. Pike County Corr. Facility Employees, 3:12-CV-1233, 2013 WL 432611 (M.D. Pa. Feb. 1,2013); Kuhn v. Capitol Pavilion, 1:11-CV-2017, 2012 WL 5197551 (M.D. Pa. Oct. 19, 2012); Educ. Mgmt. Services, Inc. v. Pennsylvania, 1:10-CV-00441, 2012 WL 2389874 (M.D. Pa. June 25, 2012); Olguin v. Burgerhoff, 1:12-CV-0003, 2012 WL 1580935 (M.D. Pa. May 4, 2012); Nowland v. Lucas, 1:10-CV-1863, 2012 WL 10559 (M.D. Pa. Jan. 3, 2012); Binsack v. Lackawanna County Dist. Attorney's Office, 3:08-CV-1166, 2011 WL 5840314 (M.D. Pa. Nov. 21, 2011); Washington v. Columbia County Prison, 3:CV-10-45, 2011 WL 98547 (M.D. Pa. Jan. 12, 2011).
In this case, the plaintiff has failed to comply with Local Rule 83.18 by providing an address where we can communicate with this litigant. If we cannot communicate with Toaz, it will be impossible to litigate this case. Therefore, this failure now compels us to apply the sanction called for under Rule 83.18 and deem the plaintiff to have abandoned this litigation. However, since we have been unable to assess the merits of this complaint due to his disappearance, it is recommended that this case be dismissed without prejudice, so that Toaz could reinstitute this case if he ever elects to communicate with the court regarding his current whereabouts.
III. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the plaintiff's amended complaint be dismissed without prejudice pursuant to Local Rule 83.18.
The Parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall
witnesses or recommit the matter to the magistrate judge with instructions.