Free Report and Recommendation - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Frank Andrew Vasquez, Plaintiff, vs. Scott Hazelett, et al., Defendants.

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No. CIV 03-0012 PHX-ROS (LOA) REPORT AND RECOMMENDATION

This matter arises on the Court's review of the file. Plaintiff commenced this action on January 2, 2003. (document # 1) On January 9, 2003, the Court granted Plaintiff leave to proceed in forma pauperis, ordered service on Defendants, and ordered Plaintiff immediately to advise the Court in writing of any change in his address. (document # 3) On August 5, 2005, the Court issued a scheduling order directing Plaintiff to respond to Defendants' Motion to Dismiss on or before September 13, 2005. (document # 11) On August 15, 2005, the Court's August 5, 2005 order was returned marked "not deliverable as addressed, unable to forward." (document # 12) In view of Plaintiff's failure to advise the Court of his new address, on August 30, 2005, the Court ordered Plaintiff to show cause on or before September 20, 2005 why this matter should not be dismissed. (document # 13) (citing Fed.R.Civ.P. 41(b)). Plaintiff has neither responded to the Court's August 30, 2005 order nor advised the Court of his new address. In fact, on September 8, 2005, the Court again received mail addressed to Plaintiff marked "return to sender." (document # 14) Research failed to reveal a
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forwarding address. In view of Plaintiff's repeated failure to comply with Court orders, the undersigned recommends that this matter be dismissed without prejudice. See, Fed.R.Civ.P. 41(b). Accordingly, IT IS HEREBY RECOMMENDED that this matter be DISMISSED without prejudice for failure to comply with Court orders. See, Fed.R.Civ.P. 41(b). 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 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See, 28 U.S.C. ' 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e). Thereafter, the parties have ten days within which to file a response to the objections. Failure timely to file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See, United States v. Reyna- Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure timely to file objections to any factual determinations of the Magistrate Judge will be considered 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. See, Fed.R.Civ.P. 72.

DATED this 6th day of October, 2005.

Case 2:03-cv-00012-ROS

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