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Smith v. Mesa Police Department

United States District Court, D. Arizona

February 2, 2018

Dameon James Smith, Plaintiff,
v.
Mesa Police Department, et al., Defendants.

          THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE

          REPORT AND RECOMMENDATION

          Eileen S. Willett United States Magistrate Judge

         This is a civil rights action filed pro se by state prisoner Dameon James Smith (“Plaintiff”) pursuant to 42 U.S.C. § 1983. For the reasons set forth herein, the undersigned recommends that the Court dismiss this action without prejudice for failure to prosecute.

         In the October 26, 2016 Notice of Assignment, the Court advised Plaintiff that he must file a Notice of Change of Address if his address changes. (Doc. 4 at 2). In its January 27, 2017 Order, the Court advised Plaintiff that he “must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure” and that the “[f]ailure to comply may result in dismissal of this action.” (Doc. 8 at 4). It is assumed that Plaintiff received the Notice of Assignment (Doc. 4) and Order (Doc. 8) as the documents were not returned as undeliverable.

         In January 2018, copies of Orders that the Clerk of Court mailed to Plaintiff were returned to the Court as undeliverable with a notation “no longer in custody.” (Docs. 49, 52, 55, 56). No forwarding address was provided.

         The Court ordered Plaintiff to file a Notice of Change of Address or show cause why this case should not be dismissed for failure to comply with the Court's Orders and LRCiv 83.3. (Doc. 53). The Court set February 1, 2018 as the deadline for Plaintiff's response. (Id.). As of the date of this Report and Recommendation, Plaintiff has not responded.

         Plaintiff has the general duty to prosecute this case. See Fidelity Phila. Trust Co. v. Pioche Mines Consol., Inc., 587 F.2d 27, 29 (9th Cir. 1978) (“It is a well established rule that the duty to move a case is on the plaintiff and not on the defendant or the court.”). “A party, not the district court, bears the burden of keeping the court apprised of any changes in his mailing address.” Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988). The Ninth Circuit Court of Appeals has rejected the “suggestion that [it] impose upon the district court an affirmative obligation to call the jailhouse to inquire into [an incarcerated litigant's] whereabouts prior to dismissing his lawsuit . . . .” Id. Plaintiff's failure to keep the Court informed of his new address constitutes failure to prosecute.

         Federal Rule of Civil Procedure 41(b) provides that “if the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.” In Link v. Wabash Railroad Co., 370 U.S. 626, 629-31 (1962), the Supreme Court recognized that a federal district court has the inherent power to dismiss a case sua sponte for failure to prosecute, even though the language of Federal Rule of Civil Procedure 41(b) appears to require a motion from a party. Moreover, in appropriate circumstances, the Court may dismiss a pleading for failure to prosecute even without notice or hearing. Link, 370 U.S. at 633.

         In determining whether Plaintiff's failure to prosecute warrants dismissal of the case, the Court must weigh the following five factors: “(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Carey, 856 F.2d at 1440 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). “The first two of these factors favor the imposition of sanctions in most cases, while the fourth factor cuts against a default or dismissal sanction. Thus the key factors are prejudice and availability of lesser sanctions.” Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir. 1990).

         Here, the first, second, and third factors favor dismissal of this case. Plaintiff's failure to keep the Court informed of his address prevents the case from proceeding in the foreseeable future. The fourth factor, as always, weighs against dismissal. The fifth factor requires the Court to consider whether a less drastic alternative is available. The undersigned finds that only one less drastic sanction is realistically available. Rule 41(b) provides that a dismissal for failure to prosecute operates as an adjudication upon the merits “[u]nless the dismissal order states otherwise.” In this case, the undersigned finds that a dismissal with prejudice would be unnecessarily harsh. The undersigned therefore recommends that this action be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b).

         For the above reasons, IT IS RECOMMENDED that the Court dismiss the First Amended Complaint (Doc. 7) without prejudice for failure to prosecute.

         This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. ยง 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the ...


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