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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

WESLEY RUSSELL, SR.

Petitioner, No. CIV S-04-2244 FCD GGH P

vs.

CHARLES PLUMMER, et al.,

Respondents. ORDER

 /

Petitioner is a state prisoner proceeding pro se with an application for writ of

habeas corpus pursuant to 28 U.S.C. § 2254. On January 31, 2005, respondent filed a motion to

dismiss. Because it appeared to the court that respondent had failed to serve the motion on

petitioner at what was then his current address based on petitioner’s latest filing on December 20,

2004 (a filing that was defective for not having been served, as noted therein), respondent was

directed to file proof of service of the motion at the Deuel Vocational Institute (DVI) address

petitioner had included in the latest filing even though he had not filed a formal notice of change

of address in compliance with Local Rule 83-182(f). Local Rule 83-182(f) requires that a party

appearing in propria persona inform the court of any address change. 

Respondent was given 15 days to file proof of having re-served the motion upon

petitioner at the DVI address but failed to do so. On May 19, 2005, the court issued an order

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directing respondent to show cause, within 10 days, for the failure to file the proof of service as

ordered and to show cause why the motion to dismiss should not be vacated from the court’s

calendar. A timely response was not forthcoming because apparently the Court Clerk failed to

serve the order upon respondent until June 22, 2005. The court therefore deems respondent’s

June 30, 2005 response to the show cause order filed timely. 

In the response to the show cause order, respondent indicates that petitioner was

served at Avenal State Prison with the motion to dismiss after respondent’s counsel’s office had

verified with the California Department of Corrections (CDC) that petitioner was housed there. 

An earlier filing of respondent’s served upon petitioner at his Santa Rita County Jail address had

been returned to the office of respondent’s counsel. (The undersigned notes that an order served

upon petitioner on December 3, 2004 at the Santa Rita address was returned to the court as well.

On the other hand, the March 30, 2005 order served on petitioner at the DVI address has not been

returned, nor has the May 19, 2005 order, re-served on June 30, 2005). According to respondent,

the CDC indicates that, as of February 9, 2005, petitioner was placed on parole. After contacting

petitioner’s parole agent, respondent’s office learned petitioner’s current address, as of June 28,

2005, was:

Sai Hotel-Room 19

964 Howard Street

San Francisco, CA 94103 

According to respondent, that office never received the court’s March 30, 2005

order directing service of the motion to dismiss upon petitioner at the DVI address. Based on

respondent’s showing, it appears that petitioner was properly served at Avenal State Prison with

the motion to dismiss, even though petitioner has never formally noticed this court of any of his

changes of address. See respondent’s exhibit showing petitioner’s movement history. 

Petitioner has not filed an opposition to the motion. Local Rule 78-230(m)

provides in part: “Failure of the responding party to file written opposition or to file a statement

of no opposition may be deemed a waiver of any opposition to the granting of the motion . . . .” 

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Petitioner will be granted 15 days to show cause why respondent’s January 31, 2005 motion to

dismiss should not be granted. Upon the expiration of that time, should petitioner fail to file and

serve any opposition, along with a showing of good cause why such opposition has not been filed

timely, the court will recommend that the motion be granted. Alternatively, should no response

be forthcoming, the court will recommend dismissal for petitioner’s failure to keep the court

apprised of his current address (see Local Rule 83-182(f) and Local Rule 11-110) and for failure

to prosecute this action. The court will direct that this order be served upon the current address

of record, the DVI address, the Avenal State Prison address, and upon the San Francisco address.

Accordingly, IT IS HEREBY ORDERED that:

1. Respondent’s June 30, 2005 response to this court’s May 19, 2005 order to

show cause is deemed timely and discharges the show cause order;

2. Petitioner must show cause for his failure to respond to respondent’s January

31, 2005 motion to dismiss within 15 days, as set forth above;

3. Failure to respond timely to this order will result in a recommendation that

respondent’s motion be granted; alternatively, the court will recommend dismissal for

petitioner’s failure to keep the apprised of his current address and for failure to prosecute this

action. Local Rules 83-182(f) and 11-110:

4. The Clerk of the Court is directed to serve this order upon petitioner by mail at

the DVI address that is the current address of record on file with this court AND upon petitioner

at BOTH of the following additional addresses:

Avenal State Prison Sai Hotel-Room 19

P.O. Box 8 964 Howard Street

Avenal, CA 93204 San Francisco, CA 94103 

DATED: 8/3/05

/s/ Gregory G. Hollows

 

GREGORY G. HOLLOWS

 UNITED STATES MAGISTRATE JUDGE

GGH:009

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russ2244.osc2

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