(PC) Aguilar-Rivera v. United States

Opinion

MARTIN NEFTALI AGUILAR-RIVERA, Case No. 1:21-cv-00868-ADA-CDB (PC)

Plaintiff, ORDER ADOPTING FINDINGS AND v. RECOMMENDATIONS AND DISMISSING WITH PREJUDICE BIVENS CLAIM FOR UNITED STATES, et al., FAILURE TO STATE A CLAIM

Defendants. (ECF No. 10)

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING WITHOUT PREJUDICE FTCA CLAIM FOR FAILURE TO STATE A CLAIM (ECF No. 11) Plaintiff Martin Neftali Aguilar-Rivera is a federal prisoner proceeding pro se and in forma pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On March 16, 2023, the Magistrate Judge issued findings and recommendations, 13–14.) The findings and recommendations also noted that Plaintiff failed to state a negligence claim under the Federal Tort Claims Act, and the Magistrate Judge granted Plaintiff leave to file an amended complaint as to this claim. (Id. at 14.) The order advised: “If Plaintiff fails to comply with this order, the Court will recommend that this action be dismissed for failure to state a claim.” (Id. at 15) (emphasis in original). On April 10, 2023, the United States Postal Service returned the findings and recommendations as “Undeliverable, Return to Sender, Insufficient Address, Unable to Forward.” Plaintiff failed to update his address within sixty-three days as required by the Court’s first informational order and Local Rule 183(b).1 On June 20, 2023, the Magistrate Judge issued further findings and recommendations, recommending that the Court dismiss the action due to Plaintiff’s failure to obey a court order, failure to comply with the Local Rules, and failure to prosecute. (ECF No. 11.) The findings and recommendations contained notice that Plaintiff had fourteen days within which to file objections. The findings and recommendations were again served on Plaintiff to the same address of record, but this time, they were not returned as undeliverable. (Id. at 2.) Therefore, the Court presumes Plaintiff received the June 20, 2023 findings and recommendations. Nunley v. City of Los Angeles, 52 F.3d 792, 796 (9th Cir. 1995) (finding the court could assume receipt where docket included notations that notice was mailed and not returned by the USPS). Plaintiff has not filed any objections, and the time do so has passed. In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the findings and recommendations to be supported by the record and proper analysis. Accordingly, 1. The findings and recommendations issued on March 16, 2023, (ECF No. 10), are adopted in full; 2. Plaintiff’s Bivens claim is dismissed with prejudice for failure to state a claim; /// 3. The findings and recommendations issued on June 20, 2023, (ECF No. 11), are adopted in full; 4. Plaintiff's FTCA claim is dismissed without prejudice for failure to obey a court order, failure to comply with the Local Rules, and failure to prosecute; and 5. The Clerk of Court is directed to close this case. g | IT IS SO ORDERED. Dated: _ August 30, 2023 UNITED f£TATES DISTRICT JUDGE