United States District Court, S.D. California
December 13, 2005.
DOROTHY M. NIEVES, Plaintiff,
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
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.
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.
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.
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).
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.
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