Phillips v. Smalls

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 GREGORY GENE PHILLIPS, CASE NO. 3:20-CV-5047-RJB-DWC 11 Plaintiff, REPORT AND RECOMMENDATION 12 v. Noting Date: November 5, 2021 13 TIM SMALLS, et al., 14 Defendant.

15 16 The District Court has referred this action filed under 42 U.S.C. § 1983 to United States 17 Magistrate Judge David W. Christel. This matter is before the Court on plaintiff’s failure to 18 comply with the Court’s order to update his address. Dkt. 69. For the reasons set forth below, the 19 Court recommends this matter be dismissed without prejudice for failure to prosecute pursuant to 20 Local Rules, W.D. Wash., LCR 41(b)(2). 21 BACKGROUND 22 On August 4, 2021, the Honorable Robert J. Bryan entered an order adopting this Court’s 23 recommendation that defendants’ motion for summary judgment be granted and plaintiff’s 24 1 claims for excessive confinement be dismissed with prejudice, but that defendants’ motion be 2 denied with respect to plaintiff’s excessive force claims. Dkts. 64, 62. That order, sent to 3 plaintiff’s address of record, was returned as undeliverable on August 16, 2021. Dkt. 65. Two 4 additional documents mailed to plaintiff’s address of record since that time have also been

5 returned. Dkts. 68, 70. 6 On August 19, 2021, the Court ordered plaintiff to update his address by October 15, 7 2021 or face dismissal without prejudice of his remaining claim in this matter. Dkt. 69. Plaintiff 8 has failed to comply with the Court’s order. 9 DISCUSSION 10 Pursuant to Local Rule 41: 11 A party proceeding pro se shall keep the court and opposing parties advised as to his or her current mailing address . . .. If mail directed to a pro se plaintiff by the 12 clerk is returned by the Postal Service . . . and if such plaintiff fails to notify the court and opposing parties within 60 days thereafter of his or her current mailing . 13 . . address, the court may dismiss the action without prejudice for failure to prosecute. 14 LCR 41(b)(2). “Local Rule 41(b)(2) . . . confers discretion on the court to dismiss a pro se 15 plaintiff's action if the plaintiff fails to keep the court apprised of his correct address.” Carey v. 16 King, 856 F.2d 1439, 1440 (9th Cir. 1988). Plaintiff “bears the burden of keeping the court 17 apprised of any changes in his mailing address.” Id. at 1441. Further, “a defendant may move for 18 dismissal of an action or of any claim against” the plaintiff “[f]or failure to prosecute or to 19 comply with” the Federal Rules of Civil Procedure. Fed. R. Civ. P. 41(b). 20 Here, mail was first returned to the Court as undeliverable to the address provided by 21 plaintiff more than 60 days ago. To date, plaintiff has not responded to the Court’s order 22 requiring that he provide an updated address. Accordingly, the Court recommends that, pursuant 23 to LCR 41(b)(2), plaintiff’s remaining claim be dismissed without prejudice for failure to 24 1 prosecute. In light of the recommended dismissal, the Court also recommends that defendants’ 2 pending motions to re-open discovery (Dkt. 66) and to obtain jail records (Dkt 62) be denied 3 without prejudice as moot. 4 CONCLUSION

5 For the reasons discussed above, the Court recommends that this action be DISMISSED 6 without prejudice, and that defendants’ pending motions (Dkts. 62, 66) be DENIED without 7 prejudice as moot. 8 The parties have fourteen (14) days from service of this Report and Recommendation to 9 file written objections thereto. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see also Fed. R. Civ. 10 P. 6. Failure to file objections will result in a waiver of those objections for purposes of appeal. 11 Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the above time limit, the Clerk shall set 12 this matter for consideration on November 5, 2021, as noted in the caption. 13 Dated this 21st day of October, 2021. 14 A 15 David W. Christel 16 United States Magistrate Judge 17 18 19 20 21 22 23 24