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Keith v. Deleo

United States District Court, M.D. Pennsylvania

May 27, 2014

CALVIN KEITH, Plaintiff,
v.
MICHAEL DELEO, et al., Defendants.

REPORT AND RECOMMENDATION

MARTIN C. CARLSON, Magistrate Judge.

I. Statement of Facts and of the Case

In its current form this case presents a dilemma-how can the Court maintain a lawsuit with a plaintiff who has disappeared and whose present whereabouts are wholly unknown? Because we conclude that the Court cannot reasonably maintain this litigation on these unusual facts it is recommended that this action be dismissed.

This is a pro se civil rights case filed by the plaintiff, a county prisoner, arising out of an incident in which the plaintiff stumbled and fell during a prisoner transport. At the time this complaint was filed, the plaintiff received a copy of this Court's Standing Practice Order. (Doc. 6.) That Standing Practice Order, in part, advised the plaintiff of his obligation to keep the Court fully informed regarding his whereabouts, stating in clear and precise terms that:

A pro se plaintiff has the affirmative obligation to keep the court informed of his or her current address. If the plaintiff changes his or her address while this lawsuit is being litigated, the plaintiff shall immediately inform the court of the change, in writing. If the court is unable to communicate with the plaintiff because the plaintiff has failed to notify the court of his or her address, the plaintiff will be deemed to have abandoned the lawsuit.

(Doc. 6, p. 5.)

On December 30, 2013, we received notice that mail addressed to the plaintiff had been returned as undeliverable, (Doc. 14.), and the plaintiff's current whereabouts were unknown. As a pro se litigant the plaintiff's failure to maintain an address where he could be reached itself violated the Rules of this Court; specifically, Local Rule 83.18, which provides that:

LR 83.18 Appearance of Parties Not Represented by Counsel.
Whenever a party by whom or on whose behalf an initial paper is offered for filing is not represented in the action, such party shall maintain on file with the clerk a current address at which all notices and copies of pleadings, motions or papers in the action may be served upon such party.

On April 21, 2014, the defendants moved to dismiss this complaint. (Doc. 17.) When the plaintiff failed to respond to this motion, we issued an order directing a response by May 23, 2014. (Doc. 19.) That order warned the plaintiff that a failure to respond to this motion could result in the dismissal of the case. In addition, that order instructed the plaintiff to provide the Court with a correct mailing address by May 23, 2014, and advised the plaintiff that the failure to provide a valid address could result in the Court construing the plaintiff to have abandoned this case. (Id.) This order has also been returned as undeliverable. (Doc. 20.)

It is against the backdrop of these procedural defaults that the defendants have now also moved to dismiss this complaint. In the absence of any means by which we can communicate with the plaintiff, we will deem the motion to dismiss to be ripe for resolution. For the reasons set forth below, we recommend that the motion to dismiss be granted.

II. Discussion

A. Under The Rules of This Court The Plaintiff Should Be Deemed to Have Abandoned This Lawsuit.

At the outset, under the Local Rules of this Court the plaintiff should be deemed to have abandoned this lawsuit by failing to provide the Court with an address where he can be reached, a direct violation of Local Rule 83.18. The plaintiff's on-going violation of Local Rule 83.18, permits the Court to find that he has abandoned this litigation. In this circumstance, dismissal of this action for failure to abide by Court orders or the Rules of this Court, and failure to prosecute, is fully justified. See, e.g., Juaquee v. Pike County Corr. Facility Employees, 3:12-CV-1233, 2013 WL 432611 (M.D. Pa. Feb. 1, 2013); Kuhn v. Capitol Pavilion , 1:11-CV-2017, 2012 WL 5197551 (M.D. Pa. Oct. 19, 2012); Educ. Mgmt. Services, Inc. v. Pennsylvania , 1:10-CV-00441, 2012 WL 2389874 (M.D. Pa. June 25, 2012); Olguin v. Burgerhoff , 1:12-CV-0003, 2012 WL 1580935 (M.D. Pa. May 4, 2012); Nowland v. Lucas , 1:10-CV-1863, 2012 WL 10559 (M.D. Pa. Jan. 3, 2012); Binsack v. Lackawanna County Dist. Attorney's Office , 3:08-CV-1166, 2011 WL 5840314 (M.D. Pa. Nov. 21, 2011); Washington v. Columbia County Prison , 3:CV-10-45, 2011 WL 98547 (M.D. Pa. Jan. 12, 2011). These basic tenets of ...


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