(HC) Calloway, Jr. v. The People of the State of California

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TONY CARL CALLOWAY, JR., Case No. 1:24-cv-00330-HBK (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO DISMISS CASE WITHOUT PREJUDICE FOR 13 v. FAILURE TO PROSECUTE

14 THE PEOPLE OF THE STATE OF 14-DAY DEADLINE CALIFORNIA, 15 ORDER DIRECTING CLERK OF COURT TO Respondent. ASSIGN DISTRICT JUDGE 16 17 18 19 Petitioner Tony Carl Calloway, Jr. initiated this action by filing a pro se petition for writ 20 of habeas corpus pursuant to 28 U.S.C. § 2254 on March 20, 2024. (Doc. No. 1, “Petition”). For 21 the reasons set forth below, the undersigned recommends that the District Court dismiss this 22 action consistent with this Court’s Local Rules for Plaintiff’s failure to prosecute this action. 23 Specifically, Plaintiff has failed to keep the Court appraised of a current address. 24 BACKGROUND 25 On March 20, 2024, the Court issued an order granting Plaintiff’s motion to proceed in 26 forma pauperis in this action. (Doc. No. 3). On April 2, 2024, the March 20, 2024 Order was 27 returned as Undeliverable, RTS, Inactive, Unable to Forward.” See docket. On April 9, 2024, 28 the Court sua sponte granted Petitioner an opportunity to file an amended petition because the 1 Petition had failed to name a proper respondent. (Doc. No. 4). On April 17, 2024, the April 9, 2 2024 was returned as “Undeliverable, Inactive.” See docket. Pursuant to this Court’s Local 3 Rules, Petitioner’s change of address was due no later than June 4, 2024. Local Rule 183(b). 4 Petitioner has not filed an updated address as required by Local Rule 182(f) and the time to do so 5 has expired. See docket. 6 APPLICABLE LAW AND ANALYSIS 7 Petitioner was obligated to keep this Court informed of his proper address. Specifically: 8 [a] party appearing in propria persona shall keep the Court and opposing parties advised as to his or her current address. If mail 9 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 10 and opposing parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without prejudice 11 for failure to prosecute. 12 Local Rule 183(b); see also Local Rule 182(f) (all parties are “under a continuing duty” to notify 13 the clerk of “any change of address[.]”). Petitioner was notified of his obligation to keep the 14 Court informed of his address and advised that the Court would dismiss an action without 15 prejudice if Petitioner did not update his address within sixty-three (63) days. (Doc. No. 2-2, 16 ¶13). Precedent supports a dismissal of a case when a litigant does not keep the court appraised 17 on his address. Carey v. King, 856 F.2d 1439 (9th Cir. 1988) (affirming lower court and finding 18 no abuse of discretion when district court dismissed case without prejudice after pro se plaintiff 19 did not comply with local rule requiring pro se plaintiffs keep court apprised of addresses at all 20 times); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal proper for failure to 21 prosecute and comply with local rules of court); Hanley v. Opinski, 2018 WL 3388510 (E.D. Ca. 22 July 10, 2018) (dismissing action for failure to prosecute and to provide court with current 23 address); Davis v. Kern Valley State Prison, No. 1:22-CV-1489-JLT-EPG (PC), 2023 WL 24 2992980, at *1, fn 1 (E.D. Cal. Apr. 18, 2023) (same). More than sixty-three (63) days has 25 passed since the Court’s April 2, 2024 Order was returned as undeliverable, and Petitioner has not 26 filed a notice of change of address.1 27 1 As of the date of these Findings and Recommendations seventy-six (76) days has passed since the March 28 20, 2024 Order was returned as undeliverable. On June 19, 2024, sixty-three (63) will further have 1 Accordingly, it is ORDERED: 2 The Clerk of Court is directed shall assign this case to a district judge for the purposes of 3 | reviewing these findings and recommendations. 4 Further, it is RECOMMENDED: 5 This case be dismissed without prejudice pursuant to Local Rule 183(b) for Petitioner’s 6 | failure to prosecute this action. 7 NOTICE TO PARTIES 8 These findings and recommendations will be submitted to the United States district judge 9 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 10 | days after being served with these findings and recommendations, a party may file written 11 || objections with the court. The document should be captioned “Objections to Magistrate Judge’s 12 | Findings and Recommendations.” Parties are advised that failure to file objections within the 13 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 14 | 838-39 (Oth Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 '© | Dated: _June 17.2024 Mihaw. Wh. foareh Zaskth 17 HELENA M. BARCH-KUCHTA ig UNITED STATES MAGISTRATE JUDGE

19 20 21 22 23 24 25 26 27 28 elapsed from when the Court’s April 9, 2024 was returned as undeliverable.