(PC) Petillo v. J. Gallagher

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ISAIAH J. PETILLO, No. 1:23-cv-00661-KES-GSA (PC) 12 Plaintiff, ORDER DECLINING FINDINGS AND RECOMMENDATIONS TO DISMISS CASE 13 v. FOR FAILURE TO PROSECUTE AND FAILURE TO COMPLY WITH COURT 14 J. GALLAGHER, et al., ORDER 15 Defendants. Doc. 14 16 17 Plaintiff, a state prisoner proceeding pro se, filed this civil rights action under 42 U.S.C. 18 § 1983. The matter was referred to a United States magistrate judge pursuant to 28 U.S.C. 19 § 636(b)(1)(B) and Local Rule 302. 20 Plaintiff filed his complaint on May 1, 2023, seeking relief for events that allegedly 21 occurred in 2017. Doc. 1. The Court screened Plaintiff’s complaint and issued an order to show 22 cause why the complaint should not be dismissed as barred by the statute of limitations. Doc. 4. 23 Plaintiff thereafter filed a response to the order to show cause, along with a filing addressing why 24 his response was filed late. Docs. 8–9. He also filed a motion for a subpoena on October 26, 25 2023. Doc. 10. The Court noted that Plaintiff’s motion for a subpoena had been improperly 26 docketed in this case and directed the Clerk to file Plaintiff’s motion in the appropriate case. 27 Doc. 11 at 2. The Court’s order regarding the subpoena was served on Plaintiff but was returned 28 as “Undeliverable, Return to Sender.” See docket. On March 6, 2024, the Court issued a second 1 order to show cause regarding Plaintiff’s failure to keep his address current; as before, that order 2 was returned as “Undeliverable, Unable to forward.” Id. 3 On April 9, 2024, the magistrate judge issued findings and recommendations 4 recommending dismissal for failure to prosecute and failure to comply with a court order. 5 Doc. 14. The findings and recommendations were served on Plaintiff and contained notice that 6 any objections thereto were to be filed within fourteen (14) days of service.1 Id. at 2. Plaintiff 7 did not file objections to the findings and recommendations within the allotted timeframe. See 8 docket. On August 1, 2024, Plaintiff filed a motion asserting that he never received any of the 9 Court’s orders and objecting that the instant case had been improperly altered. See generally 10 Doc. 15. On September 30, 2024, he asked the Court to proceed with his case and included a 11 current address: P.O. Box 4430, Lancaster, CA 93539. Doc. 16. 12 Pursuant to 28 U.S.C. § 636(b)(1), the Court has conducted a de novo review of this case. 13 Having carefully reviewed the matter, the Court declines to adopt the findings and 14 recommendations. At the time the findings and recommendations were issued, the record 15 reflected that Plaintiff had failed to comply with Local Rule 183(f), which requires a pro se party 16 to file a change of address within 63 days of the Court’s mail being returned. However, 17 Plaintiff’s subsequent filings provide his current address, explain why he previously failed to 18 update his address, and indicate that he wishes to prosecute the action. See Docs. 15–16. 19 Moreover, the magistrate judge did not address the factors identified by the Ninth Circuit in 20 Henderson v. Duncan, 779 F.2d 1421 (9th Cir. 1986). That analysis should be conducted when 21 recommending dismissal. Pagtalunan v. Galaza, 291 F.3d 639, 641 (9th Cir. 2002). 22 Accordingly, IT IS ORDERED that: 23 1. The Court declines to adopt the findings and recommendations issued April 9, 2024 24 (Doc. 14); 25 2. The Clerk of Court is directed to update Plaintiff’s address to the following: CSP – 26 Los Angeles County, P.O. Box 4430, Lancaster, CA 93539; 27 1 Local Rule 182(f) provides that “service of documents at the prior address of the . . . pro se 28 party shall be fully effective.” 1 3. Plaintiffis warned that further failure to timely comply with the Court’s orders may 2 result in the dismissal of his case for failure to prosecute; and 3 4. This matter is returned to the magistrate judge for further proceedings consistent with 4 this order. 5 6 7 | ITISSO ORDERED. _ 8 Dated: _ December 27, 2024 4h 9 UNITED STATES DISTRICT JUDGE

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