Raul Cervantes Valenzuela v. V. Torres

Opinion

Case 2:19-cv-07559-CJC-KK Document 118 Filed 09/02/22 Page 1 of 2 Page ID #:776

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES—GENERAL

Case No. CV 19-7559-CJC (KK) Date: September 2, 2022 Title: Raul Cervantes Valenzuela v. V. Torres, et al.

Present: The Honorable KENLY KIYA KATO, UNITED STATES MAGISTRATE JUDGE

DONNISHA BROWN Not Reported Deputy Clerk Court Reporter

Attorney(s) Present for Plaintiff(s): Attorney(s) Present for Defendant(s): None Present None Present

Proceedings: (In Chambers) Order to Show Cause Why Action Should Not Be Dismissed for Failure to Follow Court Orders

I. BACKGROUND

On August 29, 2019, Plaintiff constructively filed a Complaint pursuant to 42 U.S.C. § 1983 (“Section 1983”) and the Americans with Disabilities Act (“ADA”). On September 27, 2019, the Court issued an Initial Civil Rights Case Order advising Plaintiff that “[a]s long as this action is pending, [P]laintiff must immediately notify the court (and the defendants or the defendants’ attorneys) of any change in [P]laintiff’s address and the effective date.” Dkt. 11 at 3 (emphasis in original). Plaintiff was advised that if he “fails to keep the court informed of a correct mailing address, this case may be dismissed under Local Rule 41-6[.]” Id. Local Rule 41-6 provides:

If mail directed by the Clerk to a pro se plaintiff’s address of record is returned undelivered by the Postal Service, and if, within fifteen (15) days of the service date, such plaintiff fails to notify, in writing, the Court and opposing parties of his current address, the Court may dismiss the action with or without prejudice for want of prosecution.

L.R. 41-6.

On August 17, 2022, mail that was directed to Plaintiff’s address of record on August 3, 2022 was returned undeliverable by the Postal Service with a notation that Plaintiff had been paroled on July 26, 2022. Dkt. 115. II. Page 1 of 2 CIVIL MINUTES—GENERAL Initials of Deputy Clerk dsb Case 2:19-cv-07559-CJC-KK Document 118 Filed 09/02/22 Page 2 of 2 Page ID #:777

DISCUSSION

Under Federal Rule of Civil Procedure 41(b), the Court may dismiss an action with prejudice for failure to prosecute or failure to comply with any court order. See FED. R. CIV. P. 41(b).

Here, Plaintiff has failed to notify the Court, in writing, of his current address. Consequently, under Rule 41(b), the Court may properly dismiss the instant action without prejudice for failure to prosecute and comply with a court order. See Fed. R. Civ. P. 41(b); Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010) (stating standard applied in dismissal for failure to prosecute); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating courts may dismiss an action pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute or comply with the Federal Rules of Civil Procedure or the court’s orders); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (ordering dismissal for failure to comply with court orders). However, before dismissing this action, the Court will afford Plaintiff an opportunity to explain his failure to file a notice of change of address as directed by the Initial Civil Rights Case Order.

III. ORDER

Accordingly, Plaintiff is ORDERED TO SHOW CAUSE, in writing, why this action should not be dismissed for failure to prosecute and/or comply with court orders. Alternatively, Plaintiff may respond to this Order by submitting a Notice of Change of Address advising the Court and opposing parties of his current address. As set forth in the Court’s Initial Civil Rights Case Order, Plaintiff shall mail the Notice of Change of Address to “Clerk, U.S. District Court, 3470 12th Street, Riverside, CA 92501.”

Plaintiff shall have up to and including October 3, 2022, to respond to this Order. Plaintiff is cautioned that failure to timely file a response to this Order will be deemed by the Court consent to the dismissal of this action without prejudice. See FED. R. CIV. P. 41(b).

IT IS SO ORDERED. Page 2 of 2 CIVIL MINUTES—GENERAL Initials of Deputy Clerk dsb