United States District Court, C.D. California
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
...