Johnsen v. Tambe

4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT SEATTLE RICHARD LEE JOHNSEN, Plaintiff, C19-141 TSZ v. ORDER HENRY TAMBE, 10 Defendant.

THIS MATTER comes before the Court on the Report and Recommendation of the Honorable Michelle L. Peterson, United States Magistrate Judge, docket no. 58. In an earlier Report and Recommendation (“R&R No. 1”), docket no. 40, Magistrate Judge Peterson recommended that defendant Henry Tambe’s motion for summary judgment, docket no. 33, be granted. The Court vacated the R&R No. 1 in light of concerns that plaintiff Richard Lee Johnsen was never served with defendant’s motion, the notice required under Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998), or R&R No. 1. See Minute Order (docket no. 42). The matter was referred back to Magistrate Judge Peterson, who subsequently issued an order directing plaintiff to show cause why this matter should not be dismissed for failure to prosecute. Order (docket no. 56). The Order to Show Cause was mailed to plaintiff at the Washington Corrections Center in Shelton, Washington, but it was returned as undeliverable because the individual incarcerated at that facility, Richard L. Johnson (with an “o”), is not plaintiff Richard Lee Johnsen (with an “e”). See docket no. 57.

4 Meanwhile, the Court received a letter from Dennis R. Scott, a lawyer who represented plaintiff in two criminal matters pending in Skagit County Superior Court, namely Case Nos. 17-1-00784-5 and 17-1-01183-29. In his letter dated November 5, 2019, Mr. Scott indicated that plaintiff was awaiting sentencing on November 22, 2019, and was facing a possible term of 48 months. Letter (docket no. 53). Both cases were, however, dismissed, and plaintiff does not appear to currently be in custody. In his letter, Mr. Scott stated that he had provided plaintiff with the service copy of the Court’s Minute Order vacating R&R No. 1, which had been mailed to Mr. Scott. Id. Mr. Scott also informed the Court that plaintiff does not have a fixed mailing address. Id. Mr. Scott’s correspondence is much appreciated by the Court. The Court is satisfied that plaintiff was made aware of the status of these proceedings in late October or early November 2019, and that further efforts to locate plaintiff would be futile.

16 Conclusion 17 For the foregoing reasons, the Court ORDERS: 18 (1) The pending Report and Recommendation, docket no. 58, is ADOPTED; 19 (2) This matter is DISMISSED without prejudice for failure to prosecute; see Fed. R. Civ. P. 41(b); 21 (3) Defendant’s motion for summary judgment, docket no. 33, is STRICKEN as moot; and 1 (4) The Clerk is DIRECTED to send a copy of this Order to all counsel of record, to Magistrate Judge Peterson, and to Dennis R. Scott at P.O. Box 1502, as well as at 1004 7th Street, Suite 208, both in Anacortes, WA 98221, and to CLOSE this case.

4 IT IS SO ORDERED.

5 Dated this 31st day of January, 2019.

A 8 Thomas S. Zilly United States District Judge