United States District Court, N.D. West Virginia
ORDER DISMISSING CASE FOR FAILURE TO
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
case was initiated by the Plaintiff on April 23, 2018, while
he was incarcerated at FCI Coleman in Florida. The complaint
was docketed as a Bivens action and raised
allegations against various defendants at FCI Gilmer. This
case was subsequently consolidated with his FTCA complaint.
On April 24, 2018, the Plaintiff was sent a Notice of General
Guidelines for Appearing Pro Se in Federal Court
which informed the Plaintiff that he must keep the Court
advised of his most current address at all times. On August
13, 2018, the Plaintiff filed a Notice of Change of Address
advising the Court that he had been transferred to FCI Lompoc
which located in California. On April 19, 2009, the Plaintiff
filed a second change of address which provided an address in
Atwater, California in care of B. Crommie.
13, 2019, the United States filed Motion to Dismiss for
Failure to Prosecute. After reciting the history of this
case, the United States indicated that the BOP released the
Plaintiff to a halfway house in San Francisco on April 29,
2019, and the Plaintiff failed to provide an updated address
despite this Court’s LR PL P 6 which requires all pro
se prisoners to file a Notice with the Clerk of Court and
serve that Notice on all other parties within ten days of the
change of address. The United States then noted that in the
last change of address that the Plaintiff provided to the
Court on April 19, 2019, he indicated that mail should be
sent to him in care of an individual identified as “B.
Crommie” in Atwater, California, which was not his
actual physical address.
15, 2019, the United States Magistrate Judge entered an Order
directing the Plaintiff to file the mailing address for where
he is actually located. The Order was sent by certified mail,
return receipt requested to the address in Atwater,
California, and service was accepted on May 18, 2019
according to the United States Postal Service website. Ten
days later, on May 28, 2019, the Plaintiff filed a notice
changing his address to the Reentry Service in San Francisco,
California. The envelope was postmarked in San Francisco on
May 22, 2019.
same date that he filed the change of address to the Reentry
Service, the Plaintiff filed a response in opposition to the
Defendant’s Motion to Dismiss. The Defendant filed a
Reply on June 3, 2019, and the Plaintiff filed a sur-response
on June 17, 2018. On July 11, 2019, the Plaintiff filed yet
another change of address again providing the address in
Atwater, California, in care of his mother, B Crommie.
the Plaintiff did not adhere to the technical requirements of
LR PL P 6, the Court found that dismissal would be unfairly
harsh. Therefore the Motion to Dismiss filed by the United
States was denied.
August 29, 2019, the United States filed a Motion to Dismiss
the Plaintiff’s FTCA Complaint. On substantive grounds.
The Motion and supporting memorandum were mailed to the last
address the Plaintiff had provided. On September 4, 2019, a
Roseboro Notice was issued by the United States
Magistrate Judge and mailed to the Plaintiff by certified
mail, return receipt requested. Again, the mail was sent to
the Plaintiff at the last address he had provided.
label, dated September 14, 2019, the mail sent by the United
States was returned marked “Moved Address
Unknown” and was signed by B. Crommie. On September 24,
2019, the Roseboro Notice was also returned stamped
“RETURN TO SENDER-REFUSED-UNABLE TO FORWARD.” A
review of the tracking information available on the USPS
website establishes that delivery of the Notice was attempted
on September 7, 2018 and could not be made because the
addressee was unknown, and the return of the Notice began on
September 10, 2019.
it is clear that the Plaintiff’s address had changed by
September 7, 2019. In addition, the Plaintiff, by virtue of
the United States’ initial Motion to Dismiss for
failure to prosecute has been informed of the requirements of
LR PL P 6 and has failed to notify the Court of his current
address within ten days.
it is hereby ORDERED that the
Defendant’s second Motion to Dismiss for Lack of
Prosecution [ECF No. 71] be GRANTED, and
this case be DISMISSED WITHOUT
PREJUDICE FOR FAILURE TO PROSECUTE. It is further
ORDERED that the Motion to Dismiss for
Failure to State a Claim [ECF No. 66] be DISMISSED AS
Clerk is DIRECTED retain a copy of this
Order to send to the pro se Plaintiff in the event
that he provides the Court with a new mailing address. The
Clerk is further DIRECTED to send a copy to
counsel of record via electronic means.
The Court eventually became aware that
B Crommie is the Plaintiff’s mother, and he intended to
reside with her after release ...