Rivadeneira v. Department of Homeland Security et al

Northern District of California, cand-4:2015-cv-03160

ORDER DISMISSING CASE WITHOUT PREJUDICE. Motions terminated: {{6}} Motion for Leave to Proceed in forma pauperis filed by Felix Guzman Rivadeneira, {{2}} Motion for Leave to Proceed in forma pauperis filed by Felix Guzman Rivadeneira. Signed by Magistrate Judge Donna M Ryu on 11/24/15.

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 FELIX GUZMAN RIVADENEIRA, 10 Case No. 15-cv-03160-DMR (PR) Plaintiff, 11 v. ORDER OF DISMISSAL WITHOUT 12 PREJUDICE Northern District of California United States District Court DEPARTMENT OF HOMELAND 13 SECURITY, et al., 14 Defendants. 15 Plaintiff filed the present pro se prisoner complaint under 42 U.S.C. § 1983. Plaintiff has 16 consented to magistrate judge jurisdiction in this matter. Dkt. 5. He has also filed an application 17 for leave to proceed in forma pauperis. Dkts. 2, 6. 18 On September 11, 2015, the Clerk of the Court notified Plaintiff that his in forma pauperis 19 application was deficient due to the failure to include his certificate of funds and prisoner trust 20 account statement for the previous six months. The Clerk informed Plaintiff that his action could 21 not go forward until he filed the necessary documents within twenty-eight days, and that his 22 failure to do so would result in dismissal of this action. 23 On September 21, 2015, the Clerk received Plaintiff's copy of the aforementioned 24 September 11, 2015 notice with a notation that it was "RTS [returned to sender]" as undeliverable because the jail indicated that Plaintiff was "not here." Dkt. 8. To date, Plaintiff has not updated 25 his address with the court or submitted any further pleadings in this case. 26 Pursuant to Northern District Local Rule 3-11 a party proceeding pro se whose address 27 changes while an action is pending must promptly file a notice of change of address specifying the 28 1 new address. See L.R. 3-11(a). The court may dismiss without prejudice a complaint when: 2 (1) mail directed to the pro se party by the court has been returned to the court as not deliverable, 3 and (2) the court fails to receive within sixty days of this return a written communication from the 4 pro se party indicating a current address. See L.R. 3-11(b). 5 More than sixty days have passed since the mail directed to Plaintiff by the court was 6 returned as undeliverable. The court has not received a notice from Plaintiff of a new address. 7 Accordingly, the complaint is DISMISSED without prejudice pursuant to Rule 3-11 of the 8 Northern District Local Rules. Plaintiff's in forma pauperis application is DENIED as 9 incomplete. Dkts. 2, 6. 10 The Clerk shall enter judgment, terminate all pending motions, and close the file.1 11 IT IS SO ORDERED. 12 Dated: November 24, 2015 Northern District of California United States District Court 13 ______________________________________ DONNA M. RYU 14 United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 1 26 As mentioned above, Plaintiff has consented to magistrate judge jurisdiction. The undersigned Magistrate Judge, then, has jurisdiction to dismiss this action, even though Defendants have not 27 served or consented to magistrate jurisdiction. See Neals v. Norwood, 59 F.3d 530, 532 (5th Cir. 1995) (holding that magistrate judge had jurisdiction to dismiss prison inmate's action under 42 28 U.S.C. § 1983 as frivolous without consent of defendants because defendants had not been served yet and therefore were not parties). 2 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 FELIX GUZMAN RIVADENEIRA, 4 Case No. 4:15-cv-03160-DMR Plaintiff, 5 v. CERTIFICATE OF SERVICE 6 DEPARTMENT OF HOMELAND 7 SECURITY, et al., 8 Defendants. 9 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. 10 District Court, Northern District of California. 11 12 Northern District of California That on November 24, 2015, I SERVED a true and correct copy(ies) of the Order of United States District Court 13 Dismissal Without Prejudice, by placing said copy(ies) in a postage paid envelope addressed to the 14 person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said 15 copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 16 17 Felix Guzman Rivadeneira ID: A #044666731 MCJ ID #122734 18 Mchenry County Jail 2200 N. Seminary Avenue 19 Woodstock, IL 60098 20 Dated: November 24, 2015 21 22 Susan Y. Soong Clerk, United States District Court 23 24 25 By:________________________ Ivy Lerma Garcia, Deputy Clerk to the 26 Honorable DONNA M. RYU 27 28 3