United States District Court, D. Arizona
HON. JAMES A. TEILBORG, SENIOR UNITED STATES DISTRICT COURT
REPORT AND RECOMMENDATION
S. Willett United States Magistrate Judge.
civil rights action filed pro se by state prisoner Eloy
Vargas (“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.
September 5, 2017 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 October 26, 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. 5 at 4-5). It is assumed that
Plaintiff received the Notice of Assignment (Doc. 4) and
Order (Doc. 5) as the documents were not returned as
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.” (Doc. 18). 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. 19). The Court set June 15, 2018 as the deadline for
Plaintiff's response. (Id.). The Order was
returned to the Court as undeliverable. (Doc. 20).
plaintiff has a general duty to prosecute his or her 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 or her address constitutes a failure to
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. 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.” 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 this action without prejudice for failure to
IS FURTHER RECOMMENDED that the Court deny
Defendant's “Motion for Summary Judgment for
Failure to Exhaust Administrative Remedies Under 42 USC
§ 1997(e)(a)” (Doc. 14) as moot.
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 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
Magistrate Judge's Report and Recommendation may result
in the acceptance of the Report and Recommendation by the
District Court without further review. See United States
v. Reyna-Tapia,328 F.3d 1114, 1121 (9th Cir. 2003).
Failure to file timely objections to any factual
determinations of the Magistrate Judge may ...