Warner v. Cate et al
Filing
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ORDER DIRECTING PLAINTIFF TO FILE A NOTICE OF INTENT TO PROSECUTE. Signed by Judge Yvonne Gonzalez Rogers on 8/21/12. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 8/21/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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vs.
MATTHEW L. CATE, et al.,
Defendants.
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United States District Court
For the Northern District of California
ORDER DIRECTING PLAINTIFF TO
FILE A NOTICE OF INTENT TO
PROSECUTE
Plaintiff,
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No. C 11-05039 YGR (PR)
EARL WARNER,
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On October 13, 2011, Plaintiff filed this pro se civil rights complaint pursuant to 28 U.S.C.
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§ 1983. On May 8, 2012, the undersigned judge issued an Order of Service, finding that the
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complaint stated certain cognizable claims against some of the named Defendants. On May 23,
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2012, the Court's Order of Service was returned to the Court with a notation that it was
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undeliverable because it was "unclaimed." (Docket No. 17.) There is also a handwritten notation
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stating "I/M Trans," which the Court assumes means that Plaintiff has been transferred to another
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institution.
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To date, Plaintiff has not updated his address with the Court or submitted any further
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pleadings in this case. However, the Court notes that on July 12, 2012, Plaintiff filed another civil
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rights action pursuant to 28 U.S.C. § 1983. See Case No. C 12-3657 YGR (PR). Plaintiff initiated
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the latter action from R. J. Donovan Correctional Facility in San Diego, California, to which
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institution it appears he has been transferred.
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Pursuant to Federal Rule of Civil Procedure 41(b), a district court may sua sponte dismiss an
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action for failure to prosecute or to comply with a court order. See Link v. Wabash R.R., 370 U.S.
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626, 633 (1962); McKeever v. Block, 932 F.2d 795, 797 (9th Cir. 1991). But such a dismissal should
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only be ordered when the failure to comply is unreasonable. See id. A court should afford the
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litigant prior notice of its intention to dismiss. See Malone v. United States Postal Serv., 833 F.2d
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128, 133 (9th Cir. 1987). Pursuant to Northern District Local Rule 3-11 an attorney or party
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proceeding pro se whose address changes while an action is pending must promptly file and serve
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upon all opposing parties a notice of change of address specifying the new address. See L.R. 3-
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11(a). The Court may, without prejudice, dismiss an action when: (1) mail directed to the attorney or
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the pro se party by the Court has been returned to the Court as not deliverable and (2) the Court fails
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to receive within sixty days of this return a written communication from the attorney or pro se party
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indicating a current address. See L.R. 3-11(b).
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It has now been more than sixty days since the Court's notification was returned as
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undeliverable. The Court has not received a notice from Plaintiff of a new address. However, as
United States District Court
For the Northern District of California
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mentioned above, Plaintiff has recently instituted a new civil action in which he mailed his
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complaint and other initial filings from a new address. It seems that Plaintiff has been transferred to
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and is now incarcerated at the R. J. Donovan Correctional Facility.
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In light of the foregoing, Plaintiff shall inform the Court of his continued intent to prosecute
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this action no later than twenty-eight (28) days from the date of this Order. Failure to timely do so
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shall result in dismissal of this action without prejudice under Federal Rule of Civil Procedure 41(b).
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The Clerk of the Court shall update Plaintiff's address and mail this Order to:
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Earl Warner
E-32637
R. J. Donovan Correctional Facility
P.O. Box 799002
San Diego, CA 92179-9002
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IT IS SO ORDERED.
DATED:
August 21, 2012
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE
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G:\PRO-SE\YGR\CR.11\Warner5039.41(b)notice.wpd
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