United States District Court, D. Arizona
DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
S. WILLETT UNITED STATES MAGISTRATE JUDGE.
Jeremy Scott Smith, who was confined in the Arizona State
Prison Complex (ASPC)-Lewis, filed a pro se civil rights
Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1). The
Court ordered Defendant Ende to answer Count One of the
Complaint and dismissed the remaining claims and Defendants
without prejudice. (Doc. 6 at 8). In its screening Order, the
Court instructed the Plaintiff that “Plaintiff 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.
Plaintiff must not include a motion for other relief with a
notice of change of address. Failure to comply may result in
dismissal of this action.” (Id. at 7).
Plaintiff is assumed to have received the screening Order as
he prepared and sent a service packet as directed to the
Clerk of Court. (Doc. 8).
September 11 and 12, 2017, the Court received Notices of
Electronic Filing from ASPC-Lewis Complex stating:
“Hello. This inmate has been released from our custody
and is not at Lewis Complex to receive this E-file.”
(Docs. 10, 11). The Court thereafter issued a Scheduling
Order on September 15, 2017 (Doc. 12) that was also returned
as undeliverable with the notations “Inmate
Released” and “Inmate no longer in custody”
on the returned mailing envelop. (Doc. 13).
Ende filed Notices of Service of Discovery in October 2017
and January 2018. (Docs. 14, 15). Defendant Ende filed a
Motion for Summary Judgment on March 12, 2018. (Doc. 16). A
Rand Warning was sent to the Plaintiff on March 13, 2018,
directing the Plaintiff to file a response to the Motion for
Summary Judgment no later than April 16, 2018. (Doc. 18 at
3). The Order was returned as undeliverable with the notation
“Inmate no longer in custody” on the mailing
envelop. (Doc. 19).
response has been filed to the Motion for Summary Judgment as
of the date of this Order. Nor has Plaintiff filed a change
of address as required.
have the general duty to prosecute their 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). A plaintiff's failure to keep the Court
informed of his address constitutes a 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 current address prevents the case from proceeding in the
foreseeable future. A Motion for Summary Judgment has now
been filed, and response time has passed. 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 adjudication upon the merits “[u]nless the dismissal
order states otherwise.” The Court may dismiss the case
without prejudice. However, Defendant Ende has filed a Motion
for Summary Judgment requesting dismissal with prejudice.
(Doc. 16 at 17). Plaintiff has not responded.
was released from custody sometime in September 2017. He has
not informed the Court of his new address despite having been
ordered to do so. Mail to Plaintiff has been returned and
cannot be forwarded. An order to show cause would be futile.
Plaintiff clearly has abandoned his case. The undersigned
will recommend dismissal of Plaintiff's Complaint (Doc.
1) with prejudice for failure to prosecute pursuant to
Fed.R.Civ.P. 41 (b).
reasons set forth herein, IT IS RECOMMENDED
that the Complaint (Doc. 1) be dismissed with prejudice for
Plaintiffs failure to comply with the Court's Orders and
to prosecute ...