United States District Court, D. Arizona
G. CAMPBELL UNITED STATES DISTRICT JUDGE.
December 22, 2016, Plaintiff Masum Vijan, who is confined in
the Arizona State Prison Complex-Lewis, filed a pro se civil
rights Complaint pursuant to 42 U.S.C. § 1983 and paid
the filing fee. In a May 9, 2017 Order, the Court granted the
Application to Proceed and dismissed the Complaint because
Plaintiff had failed to state a claim. The Court gave
Plaintiff 30 days to file an amended complaint that cured the
deficiencies identified in the Order.
30, 2017, Plaintiff filed a First Amended Complaint (Doc. 8).
The Court ordered Defendants Smalley, Dannemiller, and Henley
to answer Count One and Defendant Elijah to answer Counts Two
and Three of the First Amended Complaint. On December 1,
2017, attorneys Paul Gattone and Ashley Gilpin filed a Notice
of Appearance on behalf of Plaintiff. On December 11, 2017,
Defendants Smalley, Elijah, and Dannemiller filed an Answer.
record reflecting that Defendant Henley had not been served,
the Court ordered Plaintiff (who is represented by counsel)
to show cause why Defendant Henley should not be dismissed
from this matter for failure to serve. On January 2, 2018,
counsel for Plaintiff filed a response to the Court's
order stating that "Plaintiff, through counsel, is
making every effort to complete service on Defendant Henley,
and seeks additional time in which to effectuate
service." Almost two-and-a-half-months later, the record
again reflecting that Defendant Henley had not been served,
the Court ordered Plaintiff to show cause why this matter
should not be dismissed as to Defendant Henley. Plaintiff
filed another response essentially requesting more time.
Court, finding that reasonable efforts have been made to
provide Plaintiff with the time needed to effect service,
will deny Plaintiff's request. Ultimately, it is
Plaintiff's obligation to ensure that each Defendant is
the Court, finding that (1) reasonable efforts have been made
to provide Plaintiff with the time needed to effect service,
(2) Defendant Henley has not been served, and (3) the time
for completing service has expired, will determine whether
dismissal of this matter as to Defendant Henley is
has the general duty to prosecute this case. See Fidelity
Philadelphia Trust Co. v. Pioche Mines Consolidated,
Inc., 587 F.2d 27, 29 (9th Cir. 1978). Rule
41(b) of the Federal Rules of Civil Procedure provides that
“[f]or failure of the plaintiff to prosecute or to
comply with these rules or any order of court, a defendant
may move for dismissal of an action.” 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 Rule 41(b)
of the Federal Rules of Civil Procedure appears to require a
motion from a party. Moreover, in appropriate circumstances,
the Court may dismiss a complaint for failure to prosecute
even without notice or hearing. See id. at 633.
determining whether Plaintiff's failure to prosecute
warrants dismissal, the Court must weigh the following five
factors: A(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 v. King, 856 F.2d 1439, 1440
(9thCir. 1988) (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.
Plaintiffs failure to serve Defendant Henley prevents the
case against him 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 Court has already made
reasonable efforts to provide Plaintiff with the time needed
to effect service.
Court 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 court in its order for dismissal
otherwise specifies." In the instant case, the Court
finds that a dismissal with prejudice would be unnecessarily
harsh. Plaintiffs claims against Defendant Henley will
therefore be dismissed without prejudice pursuant to Rule
41(b) of the Federal Rules of Civil Procedure.
IS THEREFORE ORDERED that pursuant to Rule 41(b) of
the Federal Rules of Civil Procedure Plaintiffs claims