IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
February 10, 2009
GUSTAVO CAZARES MORALES, PLAINTIFF,
KERN COUNTY SHERIFF'S DEPARTMENT, DEFENDANT.
The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION (Doc. 21)
By Order filed on July 25, 2007, Plaintiff's complaint was dismissed with leave to amend within 30 days of service of the Order. The docket in this action indicates that the July 25, 2007 Order was served on Plaintiff at his then-address. The July 25, 2007 Order was not returned to the Court as undeliverable.
Plaintiff did not file an Amended Complaint. Findings and Recommendation were issued by the Magistrate Judge on November 5, 2007 that the action be dismissed for failure to comply with a court order and for failure to state a claim upon which relief may be granted. Plaintiff did not file objections to the Findings and Recommendation. By Order filed on January 25, 2008, the Findings and Recommendation were adopted. Judgment was entered on January 25, 2008. On June 4, 2008, Plaintiff filed a Notice of Change of Address and a motion for reconsideration. Plaintiff, referring to the January 25, 2008 Order, asserts that he: couldent reaspond to Courts corespondence becus I was beaing trafered to INS and Deported to Mexico wher I couldn't get iny and all corespondence from family or court document in regard to this case. Pleas let me reeopen this case base on lack of corespondenc and reeconsider not to dismiss my case without final argument of reasonable dout of this case motion. Please ulowe me to argue this case. I am back in custody with the U.S. Marshels. Pleas also orange court dete for me to upear in your court room. [sic]
Plaintiff lodged an Amended Complaint.
By Order filed on June 17, 2008, Plaintiff's motion for reconsideration was denied:
Plaintiff does not state when he was taken into INS custody and deported to Mexico.
Neither of the Court Orders or the Findings and Recommendation were returned to the Court as undeliverable. Plaintiff presumptively received service of these papers. Nothing prevented Plaintiff from complying with the July 25, 2007 Order or from filing objections to the Findings and Recommendation, including the fact that Plaintiff may have been in Mexico. Plaintiff has not demonstrated good cause for his failure to comply with the July 25, 2007 Order and has not shown that he acted with diligence.
On August 13, 2008, Plaintiff filed a second motion for reconsideration. Plaintiff asserts:
... On January 11th, 2007 I was released from prison and began my deportation to Mexico there by losing contact with family, friends and the court. The lack of contact with the above continued during mt [sic] in Mexico and I received no medical care, no housing assistance (therefore no mailing address) and no means of contacting my family in the United States or any means for them to contact me. Furthermore I was unable to hold down a job due to my medical limitations and lack of an address since I was homeless. Due to the injuries of this case after my deportation I came back to the United States on June 2nd, 2007 and was detained by INS and on June 3rd, 2007 I was placed into the custody of the United States Marshall,s. [sic]. I was then temporarily housed at the Florence Detention Center in Florence Arizona. While at the detention center I still had no contact with friends, family or the courts.
I was sentenced to a term of 6 months. During those 6months [sic] I was transferred to 5 other locations. I was not at any one location long enough to stabilize an address of correspondence. I therefore was unable to inform the court of an address with any permanence. Upon my release from Lompoc for the 6 month sentence, I was transferred to the Metropolitan Detention Center in Los Angeles California. This occurred [sic] on December 2nd, 2007. I have been in custody here ever since ... I came into [sic] the Judges [sic] order based on my attorneys [sic] finding on the above mentioned docket text by the last service of mail order request. I hope in all due respect that I was able to prove to the Court and the Court Clerk as to why I could not respond to the Courts [sic] correspondence and allow me to as fore [sic] the Court to continue this case. I hope that I have proved to the court with proper information in black and white, and with proper documentation that supports my motion on lack of correspondence and accept my amended complaint.
Plaintiff's motion for reconsideration is DENIED. Plaintiff presumptively was served with the July 25, 2007 Order and the Findings and Recommendation issued November 5, 2007. Plaintiff makes no claim that he did not actually receive these documents. Plaintiff is obligated by Rule 83-182(f), Local Rules of Practice to notify the Clerk and all other parties of any change of address: "Absent such notice, service of documents at the prior address of the ... party shall be fully effective." After Plaintiff's illegal return to the United States from Mexico on June 2, 2007, Plaintiff could have advised the Court of his then current address. It is Plaintiff's obligation to file a notice of change of address each time it changes. Plaintiff has not demonstrated good cause for his failure to comply with the July 25, 2007 Order and has not shown that he acted with diligence.
IT IS SO ORDERED.
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