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Benny Mendoza, Iii v. City of Fresno

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


November 1, 2012

BENNY MENDOZA, III,
PLAINTIFF,
v.
CITY OF FRESNO, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF'S COMPLAINT BE DISMISSED WITHOUT PREJUDICE OBJECTIONS DUE: 21 DAYS

I. INTRODUCTION AND PROCEDURAL BACKGROUND

On May 22, 2012, Plaintiff, representing himself in propria persona, filed a complaint against Defendants. (Doc. 1.) At the time Plaintiff filed the complaint, he was incarcerated. The complaint sets forth Plaintiff's address as "CDC # T79318, Far-H4-130L, P.O. Box 990, Wasco, CA[,] 93280." (Doc. 1, p.1.) Plaintiff also filed a motion to appoint counsel. (Doc. 3.)

On August 1, 2012, the Court issued an order granting Plaintiff's request to proceed in forma pauperis. (Doc. 6.) The Court's August 1, 2012, order, however, was returned as "undeliverable, paroled" on August 13, 2012. Plaintiff has not provided an updated address to the Court.

For the reasons set forth below, the Court RECOMMENDS that Plaintiff's complaint be DISMISSED without prejudice pursuant to the Local Rules of the United States District Court, Eastern District of California, Rule 183(b).

II. DISCUSSION

Local Rule 183(b) provides:

A party appearing in propria persona shall keep the Court and opposing parties advised as to his or her current address. If mail directed to a plaintiff in propria persona by the Clerk is returned by the U.S. Postal Service, and if such plaintiff fails to notify the Court and opposing parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without prejudice for failure to prosecute.

Plaintiff has not provided the Court with a current address, and more than sixty-three (63) days have passed since mail from the Court was first returned by the U.S. Postal Service as undeliverable. The Court has no way to contact Plaintiff; the address set forth in the complaint is invalid. As such, pursuant to Local Rule 183(b), "the Court may dismiss the action without prejudice for failure to prosecute."

III. CONCLUSION AND RECOMMENDATION

Accordingly, the Court HEREBY RECOMMENDS that the complaint be DISMISSED without prejudice pursuant to Local Rule 183(b) due to Plaintiffs' failure to provide the Court with a current, valid address.

These findings and recommendations are submitted to the district judge assigned to this action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court's Local Rule 304. Within twenty-one (21) days of service of this recommendation, any party may file written objections to these findings and recommendations with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The district judge will review the magistrate judge's findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the right to appeal the district judge's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED.

20121101

© 1992-2012 VersusLaw Inc.



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