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NIEVES v. RUMSFELD

United States District Court, S.D. California


December 13, 2005.

DOROTHY M. NIEVES, Plaintiff,
v.
DONALD M. RUMSFELD, Secretary, Department of Defense, et. al., Defendants.

The opinion of the court was delivered by: JOHN HOUSTON, Magistrate Judge

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AND DISMISSING COMPLAINT WITHOUT PREJUDICE FOR FAILURE TO PROSECUTE
INTRODUCTION
Plaintiff, appearing pro se, has filed a complaint under 42 U.S.C. § 1983 alleging defendants violated her constitutional rights. Pursuant to 28 U.S.C. § 636(b)(1), the Honorable Nita L. Stormes, United States Magistrate Judge, submitted a Report and Recommendation ("report"), recommending that the complaint be dismissed without prejudice based on plaintiff's failure to prosecute the action. No objections to the report were filed. Having fully reviewed the matters presented, and for the reasons set forth below, this Court ADOPTS the report and DISMISSES the complaint without prejudice.

BACKGROUND

  The instant complaint was filed on December 9, 2004, along with a motion to proceed in forma pauperis. This Court granted plaintiff's in forma pauperis request on January 3, 2005. Service was subsequently executed by the United States Marshal. Various defendants moved for partial dismissal on April 25, 2005. Plaintiff did not file an opposition to the motion. This Court, on July 18, 2005, granted the unopposed motion, dismissing with prejudice all individual defendants except defendant Donald M. Rumsfeld, and defendants Defense Commissary Agency and the Department of Defense. Defendant Rumsfeld, the sole remaining defendant, filed an answer to the complaint on August 4, 2005. The magistrate judge subsequently issued an order directing the parties to appear at an early neutral evaluation conference.

  Plaintiff failed to appear at the early neutral evaluation conference. The magistrate judge then issued an order directing plaintiff to show cause why sanctions should not be imposed for her failure to appear. Plaintiff again did not appear for the order to show cause hearing. In addition, mail directed by the clerk to be delivered to plaintiff's last known address has been returned by the post office beginning June 28, 2005. The magistrate judge's report recommending the instant complaint be dismissed for failure to prosecute was filed on October 19, 2005. No objections to the report have been filed.

  DISCUSSION

  1. Legal Standard

  The district court's role in reviewing a Magistrate Judge's report and recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the district court "shall make a de novo determination of those portions of the report . . . 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]." Id. When no objections are filed, the Court may assume the correctness of the magistrate judge's findings of fact and decide the motion on the applicable law. Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974); Johnson v. Nelson, 142 F. Supp. 2d 1215, 1217 (S.D. Cal. 2001). Under such circumstances, the Ninth Circuit has held that "a failure to file objections only relieves the trial court of its burden to give de novo review to factual findings; conclusions of law must still be reviewed de novo." Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989) (citing Britt v. Simi Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983)).

  Civil Local Rule 83.11(b) provides that "[i]f mail directed to a pro se plaintiff by the clerk at the plaintiff's last designated addressed is returned by the Post Office, and if such plaintiff fails to notify the court and opposing parties within 60 days thereafter of the plaintiff's current address, the court may dismiss the action without prejudice for failure to prosecute." CivLR 83.11(b).

  2. Analysis

  The magistrate judge recommends that, based on plaintiff's "failure to . . . notify the Court of her current address, and otherwise prosecute this case," the instant complaint should be dismissed without prejudice. Report at 3. This Court's de novo review of the record reveals that the magistrate judge's findings and analysis are correct. Because plaintiff has failed to notify the court of her current address, she has, thus, failed to prosecute her action. See CivLR 83.11 (b). Therefore, this Court finds that the complaint should be dismissed as recommended by the magistrate judge.

  CONCLUSION AND ORDER

  Based on the foregoing, IT IS HEREBY ORDERED that the magistrate judge's findings and conclusions set forth in the report are ADOPTED in their entirety and the instant complaint is DISMISSED WITHOUT PREJUDICE for failure to prosecute.

20051213

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