United States District Court, D. Arizona
HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
S. Willett United States Magistrate Judge
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.
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
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.
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.
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.
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.
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).
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
above reasons, IT IS RECOMMENDED that the
Court dismiss the First Amended Complaint (Doc. 7) without
prejudice for failure to prosecute.
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.
§ 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