Gochie v. Chester

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA STATESVILLE DIVISION 5:19-cv-00094-FDW

GARY D. GOCHIE, ) ) Plaintiff, ) ) vs. ) ORDER ) FNU CHESTER, et al., ) ) ) Defendant. ) __________________________________________)

THIS MATTER is before the Court on Plaintiff’s Motion for Appointment of Counsel [Doc. 3] and Plaintiff’s Motion for Copies [Doc. 4]. In support of the motion to appoint counsel, Plaintiff states, among other things, that the issues involved in his case are complex and will require significant research and investigation. Plaintiff states he has no access to a law library and limited knowledge of the law. Plaintiff also argues that a trial would likely involve conflicting testimony, and counsel would allow Plaintiff to better present evidence and cross examine witnesses. A plaintiff must present “exceptional circumstances” in order to require the Court to seek the assistance of a private attorney for a plaintiff who is unable to afford counsel. Miller v. Simmons, 814 F.2d 962, 966 (4th Cir. 1987). The Plaintiff here has not presented exceptional circumstances that justify appointment of counsel. Therefore, Plaintiff’s motion to appoint counsel will be denied. As for Plaintiff’s motion for copies, Plaintiff requests that he be provided with copies of the attachments to his Complaint [Docs. 1-1 through 1-6]. The Court will grant this motion. Further, in reviewing the docket in relation to Plaintiff’s motion for copies, the Court notes that Plaintiff has filed a discovery request with the Court [Doc. 6-1]. First, discovery in this matter is premature, as no Pretrial Order and Case Management Plan has been entered by the Court. Second, at the appropriate time, discovery requests shall only be served on the opposing party, not be filed with the Court. Plaintiff is cautioned against serving discovery requests prematurely and against filing discovery requests with the Court in the future. IT IS THEREFORE ORDERED that: (1) Plaintiff's Motion to Appoint Counsel [Doc. 3] is DENIED. (2) Plaintiff's Motion for Copies [Doc. 4] is GRANTED and the Clerk is respectfully instructed to send Plaintiff copies of his Complaint and the attachments thereto [Docs. 1 and 1-1 through 1-6]. Signed: July 12, 2019

Frank D. Whitney Chief United States District Judge ~“»*"

DISTRICT COURT OF THE UNITED STATES WESTERN DISTRICT OF NORTH CAROLINA STATESVILLE DIVISION 5:19-cv-00094-FDW

GARY D. GOCHIE, ) ) Plaintiff, ) ) vs. ) ) ORDER FNU CHESTER, et al., ) ) Defendants. ) ___________________________________ )

THIS MATTER is before the Court on periodic status review. Pro se Plaintiff Gary D. Gochie (“Plaintiff”) filed a Complaint under 42 U.S.C. § 1983 on July 10, 2019 against various Defendants alleging constitutional violations while he was confined at Alexander Correctional Institution in Taylorsville, North Carolina. [Doc. 1]. In his Complaint, Plaintiff states that he has had a case dismissed based on the “three strikes rule” found in 28 U.S.C. § 1915(g) and cites Civil Case No. 5:18-cv-00128-FDW (“Case No. 5:18-cv-128”). [Doc. 1 at 10]. Despite Plaintiff’s admission relative to the three strikes rule, Plaintiff’s Complaint in Case No. 5:18-cv-128 was dismissed for failure to state a claim upon which relief could be granted, not under the three strikes rule. [Case No. 5:18-cv-128, Doc. 17]. In reviewing Plaintiff’s other matters filed with the Court, however, the Court sees that Plaintiff filed yet another case, Civil Case No. 5:18-cv-00148-FDW (“Case No. 5:18-cv-148”), which was dismissed without prejudice on October 25, 2019, for failure to prosecute after Plaintiff failed to notify the Court of his current address. [Case No. 5:18-cv-148, Doc. 50]. Specifically, the Court learned through a notice filed by the North Carolina Department of Public Safety that the Plaintiff had been released from NCDPS custody. [Id., Doc. 44]. In the instant case, Plaintiff's address of record remains Alexander Correctional Institution. As such, as in Case No. 5:18-cv-148, Plaintiff has failed to notify the Court of his current address. Plaintiffs have a general duty to prosecute their cases. In this regard, a pro se plaintiff must keep the Court apprised of his current address. See Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988) (“A party, not the district court, bears the burden of keeping the court apprised of any changes in his mailing address.”). Where a pro se plaintiff has failed to notify the Court of his change of address, the action is subject to dismissal without prejudice for failure to prosecute. Accord Walker v. Moak, Civil Action No. 07-7738, 2008 WL 4722386 (E.D. La. Oct. 22, 2008) (dismissing without prejudice a § 1983 action for failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure where the plaintiff did not notify the court of his new address upon his release from jail). Before dismissing this action for failure to prosecute, the Court will give Plaintiff ten days in which to notify the Court of his updated address. IT IS, THEREFORE, ORDERED that: 1. Plaintiff shall have ten (10) days from service of this Order in which to notify the Court of his change in address. 2. The Clerk is directed to mail this Order to Plaintiff's address as listed on the Court’s docket report.

Signed: December 20, 2019

Frank D. Whitney Chief United States District Judge ~“#*"

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA STATESVILLE DIVISION 5:19-cv-00094-FDW

GARY D. GOCHIE, ) ) Plaintiff, ) ) vs. ) ) ORDER FNU CHESTER, et al., ) ) Defendants. ) ___________________________________ )

THIS MATTER is before the Court on periodic status review following the Plaintiff’s failure to comply with the Court’s Order requiring Plaintiff to notify the Court of his change in address [Doc. 12] and the return of mail sent to Plaintiff’s listed address as undeliverable. In reviewing Plaintiff’s other matters filed with the Court, the Court was alerted to the fact that Plaintiff had been released from NCDPS custody and that Plaintiff had failed to notify the Court of his current address. As such, on December 23, 2019, the Court entered an Order in the instant case requiring the Plaintiff to notify the Court of his change in address within ten days of that Order or the Plaintiff’s case would be dismissed for failure to prosecute. [Doc. 12]. On January 9, 2019, the Court received notice that that Order was being returned as undeliverable because Plaintiff was released from custody. [Doc. 13]. The Court, therefore, will dismiss this action without prejudice. A plaintiff has the obligation to notify the Court of an address change. Plaintiff has failed to notify the Court of his change in address. Therefore, this action will be dismissed without prejudice for failure to prosecute. Accord Walker v. Moak, Civil Action No. 07-7738, 2008 WL 4722386 (E.D. La. Oct. 22, 2008) (dismissing without prejudice a § 1983 action for failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure where the plaintiff did not notify the court of his new address upon his release from jail). IT IS, THEREFORE, ORDERED that: 1. This action is dismissed without prejudice. 2. The Clerk is directed to terminate the case. Signed: January 13, 2020

Frank D. Whitney Chief United States District Judge