United States District Court, W.D. Washington, Tacoma
ORDER GRANTING DEFENDANTS' MOTION REQUIRING
PLAINTIFF TO SHOW CAUSE
Theresa L. Fricke United States Magistrate Judge.
matter comes before the Court on Defendants' motion for
an order requiring Plaintiff to show cause why his claims
should not be dismissed without prejudice. Dkt. 22. Having
carefully considered defendants' motion and balance of
the record, the Court finds that motion should be granted.
is proceeding pro se and in forma pauperis
in this matter. On September 28, 2016, Plaintiff, who at the
time was a prisoner at the Coyote Ridge Corrections Center
(CRCC), filed his civil rights complaint with the Court. Dkt.
4. On November 18, 2016, the Court received a notice from the
CRCC that Plaintiff was no longer at that institution, and
that on November 7, 2016, he had been released on a United
States Department of Homeland Security Immigration and
Customs Enforcement (ICE) detainer.
November 22, 2016, Defendants filed their answer. Dkt. 14.
That same day they filed a notice with the Court stating that
Plaintiff had filed a change of address on November 13, 2016,
in which he listed the ICE detention center at his address,
but that since then he was no longer at that address, as he
had been deported from the country. Dkt. 15.
December 28, 2016, counsel for defendants notified the Court
that they had received a letter from Plaintiff addressed to
the Court. Dkt. 16. In that letter, Plaintiff requested
appointment of counsel. Dkt. 17. He also informed the Court
that he had been “transferred” to the following
address: Dr. Andador La Tinajita #9, Coloma La Tinajita, San
Miguel el Alto Jalisco 47140. Id.
denying Plaintiff's request for appointment of counsel,
the Court noted that Plaintiff was no longer in state custody
and that he appeared to be residing in Mexico, but that he
did not establish the requisite for being granted appointment
of counsel at government expense. Dkt. 19. The Court's
order denying appointment of counsel, along with the Pretrial
Scheduling Order, were issued on February 16, 2017, and sent
to Plaintiff at the above address, which was his last known
address. Dkts. 19, 20.
1, 2017, Defendants filed their current motion. As support
for that motion, Defendants' counsel states
Defendants' sent their first set of interrogatories and
requests for production to Plaintiff at the above Mexico
address on March 3, 2017. Dkt. 23, p. 1. As no response to
that discovery request or any other correspondence had been
received from Plaintiff, on April 14, 2017, Defendants'
counsel sent a letter to Plaintiff at that last known same
address requesting a discovery conference. Id.
May 1, 2017, because Defendants' counsel still had not
received any response from Plaintiff, Defendants' counsel
again wrote to Plaintiff requesting a discovery conference.
Id. at pp. 1-2. In that letter, Defendants'
counsel informed Plaintiff that if no response was received
to Defendants' request by May 22, 2017, a motion based on
Plaintiff's failure to respond would be filed with the
Court. Id. at p. 2.
to Defendants' counsel this last letter cleared customs
in Mexico on May 17, 2017, but that to date they had not
received confirmation of delivery. Id. at p. 2.
Defendants' counsel also states that Defendants had no
way to contact Plaintiff and that as of June 1, 2017,
Defendants' counsel had not received anything related to
this case from Plaintiff since December 2016. Id.
Local Rule LCR 41(b) provides:
(2) A party proceeding pro se shall keep the court and
opposing parties advised as to his or her current mailing
address and, if electronically filing or receiving notices
electronically, his or her current email address. If mail
directed to a pro se plaintiff by the clerk is returned by
the Postal Service, or if email is returned by the internet
service provider, and if such plaintiff fails to notify the
court and opposing parties within 60 days thereafter of his
or her current mailing or email address, the court may
dismiss the action without prejudice for failure to
Rule 41(b)(2) . . . confers discretion on the court to
dismiss a pro se plaintiff's action if the plaintiff
fails to keep the court apprised of his correct
address.” Carey v. King, 856 F.2d 1439, 1440
(9th Cir. 1988). Plaintiff “bears the burden of keeping
the court apprised of any changes in his mailing
address.” Id. at 1441. Further, “a
defendant may move for dismissal of an action or of any claim
against” the plaintiff “[f]or failure to
prosecute or to comply with” the Federal Rules of Civil
Procedure (FRCP). FRCP 41(b).
there is no indication that any postal or electronic mail
sent to Plaintiff has been returned to the Court, based on
the declaration of Defendants' counsel it is clear that
Plaintiff has not responded to any Defendants' multiple
discovery requests or attempts to engage in discovery.
Indeed, given that the discovery deadline in this case has
already passed, it appears Plaintiff has failed engage in
discovery at all. Whatever the reason - whether because
Plaintiff has not given the Court or Defendants his correct
current address, whether correspondence sent to Plaintiff has
not been getting through, or whether he has decided not to
respond to Defendants - it seems that Plaintiff may no longer
be diligently prosecuting this matter.
the Court agrees with Defendants that Plaintiff should be
given sixty (60) days within which to respond to this Order,
showing cause why this matter should not be dismissed under
LCR 41(b)(2) for failure to prosecute. Defendants' motion
(Dkt. 22) therefore is GRANTED. Plaintiff shall file his
response to this Order by no later than October 2, 2017.
Plaintiff is warned that failure to so respond ...