(PC) Pierce v. Unknown, No. 1:2015cv00650 - Document 22 (E.D. Cal. 2015)
Court Description: ORDER Vacating 18 FINDINGS AND RECOMMENDATIONS; ORDER Dismissing 20 Petition for Case to be Reviewed and 21 Motion for Disqualification signed by Magistrate Judge Dennis L. Beck on 08/25/2015. (Flores, E)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SEAVON PIERCE, 12 13 Case No. 1:15-cv-00650 LJO DLB PC Plaintiff, ORDER VACATING FINDINGS AND RECOMMENDATION [ECF No. 18] v. 14 BARACK OBAMA, et al., 15 Defendants. ORDER DISMISSING PETITION FOR CASE TO BE REVIEWED AND MOTION FOR DISQUALIFICATION [ECF Nos. 20, 21] 16 17 Plaintiff Seavon Pierce, a state prisoner proceeding pro se and in forma pauperis, filed 18 this civil rights action pursuant to 42 U.S.C. § 1983 on November 12, 2014. The matter was 19 referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and Local Rule 302. 20 On April 29, 2015, the Court issued an order granting in forma pauperis status and served 21 the order on Plaintiff at his last known address at Corcoran State Prison (“CSP”). The order was 22 returned on May 18, 2015, as undeliverable. On July 1, 2015, the Court issued a second order 23 directing Plaintiff to file a consent or decline form. Plaintiff was again served at his last known 24 address at CSP. The order was returned as undeliverable on July 17, 2015. Accordingly, on 25 August 3, 2015, the Magistrate Judge issued Findings and Recommendations that the action be 26 DISMISSED WITHOUT PREJUDICE for Plaintiff’s failure to prosecute. As discussed by the 27 Court, Plaintiff is required to keep the Court apprised of his current address at all times, and 28 Local Rule 183(b) provides that “[i]f mail directed to a plaintiff in propria persona by the Clerk 1 1 is returned by the U.S. Postal Service, and if such plaintiff fails to notify the Court and opposing 2 parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the 3 action without prejudice for failure to prosecute.” Plaintiff’s address change was due by July 27, 4 2015, but he failed to file one or otherwise communicate with the Court. The Findings and 5 Recommendations were served on Plaintiff at his last known address at CSP. 6 On August 20, 2015, Plaintiff filed objections to the Findings and Recommendations. 7 Plaintiff states he is currently incarcerated at Kern Valley State Prison (“KVSP”), which is where 8 he has been since August 1, 2015. Plaintiff states the Findings and Recommendations were 9 forwarded to him at his KVSP address. Plaintiff states the undersigned gained knowledge that 10 the applicant has changed locations. This is incorrect. It was not until Plaintiff filed his 11 objections that the Court became aware of his new address. Plaintiff states that this is no fault of 12 his, and that Local Rule 183(b) has been met as to current address notifications. This is also 13 incorrect. As of this date, Plaintiff has not filed a notice of change of address. Plaintiff is 14 advised that it is his obligation under Local Rule 183(b) to keep the Court apprised of his current 15 address at all times. Nevertheless, based on information from the objections reflecting Plaintiff’s 16 current address, the Court will vacate the Findings and Recommendations and direct the Clerk of 17 Court to change Plaintiff’s address on the docket. 18 Along with his objections, on August 20 and 21, 2015, Plaintiff filed a motion for 19 disqualification and motion requesting case to be reviewed. The motions are unclear and vague. 20 It appears that Plaintiff desires that his case proceed and he complains that Defendants have 21 failed to answer his complaint. Plaintiff is advised that the Court is required to screen 22 complaints brought by prisoners seeking relief against a governmental entity or officer or 23 employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint 24 or portion thereof if the prisoner has raised claims that are legally “frivolous or malicious,” that 25 fail to state a claim upon which relief may be granted, or that seek monetary relief from a 26 defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). “Notwithstanding any 27 filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any 28 time if the court determines that . . . the action or appeal . . . fails to state a claim upon which 2 1 relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). In this case, the Court has not yet 2 screened the complaint and service on Defendants has not yet been authorized. The Court is 3 aware of the pending complaint; however, the Court is backlogged with a great many complaints 4 and will act to screen them in the order of filing. 5 Plaintiff further argues that he has not consented to the jurisdiction of the Magistrate 6 Judge, and therefore the Magistrate Judge has no jurisdiction in his case. This is incorrect. It is 7 true Plaintiff has not consented to the jurisdiction of the Magistrate Judge; however, the case was 8 referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(A) and Local Rule 302. 9 Under § 636(b)(1)(A), the Magistrate Judge may be designated, as here, to “hear and determine 10 any pretrial matter pending before the court, except a motion for injunctive relief, for judgment 11 on the pleadings, for summary judgment, to dismiss or quash an indictment or information made 12 by the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of 13 a class action, to dismiss for failure to state a claim upon which relief can be granted, and to 14 involuntarily dismiss an action.” Accordingly, the undersigned is authorized to submit Findings 15 and Recommendations to the assigned District Judge in this case. 16 Based on the foregoing, IT IS HEREBY ORDERED that: 17 1. The Findings and Recommendations, filed August 3, 2015, is VACATED; 18 2. The Clerk of Court is DIRECTED to change Plaintiff’s current address to the 19 address reflected in Plaintiff’s objections; 20 3. Plaintiff’s miscellaneous motions [ECF Nos. 20, 21] are DENIED. 21 22 23 IT IS SO ORDERED. Dated: /s/ Dennis August 25, 2015 L. Beck UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 3
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