Free Report and Recommendation - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Frederick M. Ellis,

) ) Plaintiff, ) ) vs. ) ) Officer Bingaman, ) ) Defendant. ) ______________________________)

CV 03-2186-PHX-EHC (MS)

REPORT AND RECOMMENDATION AND ORDER

Plaintiff, while an inmate at the Arizona Department of Correction, Winslow Unit
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in Winslow, Arizona, filed a pro se complaint pursuant to 42 U.S.C. § 1983 on
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November 7, 2003. On March 15, 2006, the Court issued an order directing Plaintiff to
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file a Notice of Change of Address with the Clerk of the Court within 15 days of the filing
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of the Order as Plaintiff had been released from custody in early January 2006. The
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Court also set a status conference for April 12, 2006 at 10:00 a.m. before the
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undersigned to ascertain whether Plaintiff still intends to proceed with his case. The
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deadline for Plaintiff to notify the Court of his current address expired on March 29,
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2006. See Doc. # 23. Rule 3.4, Local Rules of Civil Procedure for the United States
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District Court for the District of Arizona requires prisoner-litigants to comply with
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instructions attached to the Court-approved complaint form for use in section 1983
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actions. Those instructions provide, "[y]ou must immediately notify the clerk ... in writing
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of any change in your mailing address. Failure to notify the court of any change in your
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mailing address may result in the dismissal of your case."
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Plaintiff was warned that failure to file a notice of change of address or to otherwise comply with the Court's orders could result in the dismissal of his suit pursuant to Fed. R. Civ. P. 41(b). See Doc. # 25. Plaintiff has not filed a notice of change of address and mail sent to his last known address was returned. An order to show cause why this action should not be dismissed for failure to serve the defendant or for failure to prosecute would be futile. See Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988) (finding "[a]n order to show cause why dismissal was not warranted or an order imposing sanctions" futile when it "would only find itself taking a round trip tour through the United States mail."). In addition, the Court will order that the currently scheduled status conference be vacated, as a result of the Order setting such conference being returned by the U.S. Postal Service as undeliverable. IT IS HEREBY ORDERED that the Status Conference, currently set for April 12, 2006 at 10:00 a.m., is VACATED. IT IS RECOMMENDED that Plaintiff's complaint be dismissed with prejudice for Plaintiff's failure to comply with Rule 3.4, Local Rules of Civil Procedure for the United States District Court for the District of Arizona and Rule 41(b), Federal Rules of Civil Procedure. This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have ten (10) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. 28 U.S.C. §636(b)(1); Rules 72, 6(a) and 6(e) of the Federal Rules of Civil Procedure. /// /// /// ///

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Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation.

DATED this 30th day of March, 2006.

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