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Masek v. City of Glendale

United States District Court, C.D. California

October 21, 2014

KARL MASEK
v.
CITY OF GLENDALE, et al.

CIVIL MINUTES - GENERAL

SHERI PYM, Magistrate Judge.

Proceedings: (In Chambers) Third Order to Show Cause Why Complaint Should Not Be Dismissed for Failure to Prosecute

On May 23, 2014, pro se plaintiff Karl Masek filed a civil rights complaint pursuant to 42 U.S.C. ยง 1983. Plaintiff challenged a no-smoking ordinance in the City of Glendale as unconstitutionally vague, and contended that Glendale police officers violated his civil rights by searching and harassing him when he was not violating the ordinance.

On June 19, 2014, the court issued an Initial Civil Rights Case Order, advising plaintiff that the court was screening the complaint and that further directions would follow. In paragraph 8 of that same Order, the court also instructed plaintiff that "plaintiff must immediately notify the court (and defendants or defendants' attorneys) of any change in plaintiff's address and the effective date. If plaintiff fails to keep the court informed of a correct mailing address, this case may be dismissed under Local Rule 41-6, which states as follows:

If mail directed by the Clerk to a pro se plaintiff's address of record is returned undelivered by the Postal Service, and if, within fifteen (15) days of the service date, such plaintiff fails to notify, in writing, the Court and opposing parties of his current address, the Court may dismiss the action with or without prejudice for want of prosecution."

On July 15, 2014, this court, having completed screening of the complaint, found it subject to dismissal in large part, but granted plaintiff leave to file a First Amended Complaint by August 14, 2014. Plaintiff did not file a First Amended Complaint or otherwise communicate with the court by the August 14, 2014 deadline. Accordingly, on September 2, 2014, the court issued an Order to Show Cause ("OSC"), ordering plaintiff to show cause in writing by September 23, 2014 why this action should not be dismissed for failure to prosecute and/or comply with a court order. The court informed plaintiff that if he filed a First Amended Complaint by September 23, 2014, the OSC would be automatically discharged.

Plaintiff did not file a First Amended Complaint or otherwise directly respond to the OSC by the September 23, 2014 deadline. Instead, on September 8, 2014, plaintiff filed a motion to disqualify the District Judge and Magistrate Judge before whom this case is currently pending. That motion to disqualify was referred to a different District Judge, who denied the motion to disqualify on October 3, 2014.

As the motion to disqualify is no longer pending, on October 14, 2014, the court issued a Second Order to Show Cause ("OSC 2") giving plaintiff one more opportunity to file a First Amended Complaint or otherwise respond to the court's September 2, 2014 OSC. The court gave plaintiff until November 4, 2014 to show cause in writing why this action should not be dismissed for failure to prosecute and/or comply with a court order.

The orders and other notices issued by the court were mailed to plaintiff at his address of record, a General Delivery address on Vignes Street in Los Angeles. On October 16, 2014, the July 15, 2014 Notice of Clerical Error that was mailed to plaintiff at his address of record was returned to the court as unclaimed. On October 20, 2014, the first OSC that was mailed to plaintiff at his address of record was returned to the court as unclaimed. On October 21, 2014, the July 15, 2014 order dismissing the complaint with leave to amend was returned to the court as unclaimed.

The court has since examined the motion to disqualify that plaintiff filed on September 8, 2014, and noticed that it shows a different address for plaintiff, in Burbank. But plaintiff has never notified the court that his address has changed. Simply using a different address on a filing is insufficient to apprise the court of new address.

It therefore appears that - in addition to failing to file a First Amended Complaint by the deadline, and to failing to respond to the OSC - plaintiff has failed to follow the court's Order to immediately notify the court of a change of address. Plaintiff's failure to comply with the court's Order, and failure to comply with Local Rule 41-6, renders this action subject to dismissal for failure to comply with a court order and failure to prosecute.

Accordingly, within fourteen (14) days of the date of this Order, that is, by November 4, 2014, plaintiff is ORDERED TO SHOW CAUSE in writing why this action should not be dismissed for failure to prosecute and/or comply with a court order. Plaintiff is cautioned that his failure to timely file a response to this Third Order to Show Cause will be deemed by the court as consent to the dismissal of this action without prejudice.

If plaintiff files both (1) a First Amended Complaint and (2) a notice of a change of address or confirmation of his address by November 4, 2014, this Third Order to Show Cause will be automatically discharged, and plaintiff need not respond to it separately. For plaintiff's information, a copy of the July 15, 2014 Order Dismissing Complaint with Leave to Amend (docket no. 7) is enclosed. A blank Central District civil rights complaint form is also included for plaintiff to use for preparing a First Amended Complaint.

The court has not changed plaintiff's address of record because plaintiff has not properly notified the court of a new address. But the court will mail this Third Order to Show Cause to plaintiff at his address of record and the Burbank address shown below. Future mailings from the court will only be sent to plaintiff's address of record.


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