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Louis v. Govenor State of California

United States District Court, C.D. California

October 25, 2019

JOE LOUIS, Plaintiff,
v.
GOVERNOR OF THE STATE OF CALIFORNIA, et al., Defendants.

          ORDER DISMISSING ACTION WITH PREJUDICE

          JAMES V. SELNA, UNITED STATES DISTRICT JUDGE

         I. BACKGROUND

         In July 2019, Joe Louis (“Plaintiff”) filed this pro se civil rights action against the governor of California and the mayor of Los Angeles. (Dkt. 1, “Complaint.”) The Complaint alleged that Defendants committed “gross negligence for not building underground nuclear fallout shelters for elementary school children in California and for not conducting mock civil defense evacuation disaster drills.” (Id.) The Complaint stated that Plaintiff was a “Commander” in the “United States Army Special Forces Military Intelligence” and listed his return address as “Patriot First, 6209 11th Avenue, Brooklyn, NY 11229.” (Id. at 1.)

         On August 7, 2019, the Magistrate Judge issued a Report & Recommendation (“R&R”) finding that the Complaint should be dismissed without leave to amend. (Dkt. 5.) The R&R concluded that: (a) Plaintiff had failed to demonstrate standing; (b) Defendants (elected officials in California) owe Plaintiff (a resident of New York) a relevant duty of care for purpose of stating a negligence claim; and (c) Defendants were immune from this type of negligence claim under California Government Code Section 820.2, because deciding whether and how to protect California citizens from a nuclear attack is a discretionary policy decision. (Id.) The Magistrate Judge found that granting leave to amend appeared to be futile, given the nature of the claim, but noted that Plaintiff could assert additional factual allegations in any objections to the R&R. (Id. at 5.)

         On August 8, 2019, the Court received an affidavit from Plaintiff describing the effects of a nuclear bomb and including a hand-drawn diagram of a proposed nuclear shelter. (Dkt. 6.) This affidavit listed Plaintiff's return address as “Mr. Joe W. Louis, Patriot First Colonial House, 6209 11th Avenue, Brooklyn, NY 11219.” (Id. at 5.)

         On August 26, 2019, the Court received a notice indicating that the August 7 R&R had been returned by the postal service because as “insufficient address.” (Dkt. 7.) Noting that Plaintiff had since provided his first name and a different zip code, the Court sent a new copy of the R&R to the address listed on the August 8 affidavit and extended the deadline for filing objections to the R&R. (Dkt. 8.)

         A copy of the R&R was sent address to “Louis” and again returned by the postal service with the explanation, “Vacant[;] unable to forward.” (Dkt. 9.) Noting that the mailing address had not included Plaintiff's first name, the Court mailed yet another copy of the R&R and extended the deadline for filing objections. (Dkt. 10.) The Court warned, “If this latest copy of the R&R is again returned as undeliverable, the Court may dismiss this action for the reasons stated in the R&R and/or for want of prosecution.” (Id.)

         On October 18, 2019, the postal service returned the latest copy of the R&R as undeliverable. (Dkt. 11.)

         II. DISCUSSION

         A. Dismissal is Appropriate for Failure to State a Claim

         For the reasons explained in the Magistrate Judge's R&R issued on August 7, 2019, the Complaint fails to state a claim for relief. (Dkt. 5.) A dismissal without leave to amend is appropriate because it appears that amendment would be futile. See Chaset v. Fleer/Skybox Int'l, 300 F.3d 1083, 1088 (9th Cir. 2002); Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 2002). Additionally, Plaintiff has failed to respond to the R&R or keep the court apprised of his current mailing address, as discussed below.

         B. Dismissal is Appropriate for Failure to Prosecute

         1. Legal Standard

         It is well-established that a district court may dismiss an action for failure to prosecute, failure to follow court orders, or failure to comply with the federal or local rules. See Fed.R.Civ.P. 41(b); Link v. Wabash R. Co., 370 U.S. 626, 629-30 (1962); Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). Local Rule 41-1 provides that “[c]ivil suits which have been pending for an unreasonable period of time without any action having been taken therein may, after notice, be dismissed for want of prosecution.” Local Rule 41-6 also authorizes the Court to dismiss an action for want of prosecution if “a pro se [petitioner's] address of record is returned undelivered by the Postal ...


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