United States District Court, D. Arizona
ORDER
Jennifer G. Zipps United States District Judge.
The
record reflects that pro se Plaintiff Kylaya Hanes
has failed to comply with this Court's order and rules to
keep the Court informed of her address. She has also failed
to respond to Defendants' motions to dismiss this action.
For the following reasons, the Court will dismiss this
action.
BACKGROUND
Hanes
is the sole remaining plaintiff in this action filed against
the following Defendants: Greg DeMeritt, Chief Deputy Clerk
of the Arizona Superior Court for Pima County; Arizona State
Governor Doug Ducey; Arizona Department of Child Safety and
employees Gregory McKay, Pauline Machiche, Laura Gomez, Lisa
Hamilton, and Elizabeth Murphy-Thomas[1]; and Banner University
Medical Center and employees Peter Fine and Carla
Rodriguez[2]. (Doc. 1.) Hanes alleges violations of her
rights under the First, Fourth and Fourteenth Amendments
against all Defendants pursuant to 42 U.S.C. §§
1983 and 1985(3).
At the
inception of this action when granting Hanes's request to
proceed in forma pauperis, the Court advised Hanes
of her obligation under LRCiv 83.3(d) of the Local Rules of
Practice of the U.S. District Court for the District of
Arizona, to notify the Court of any address change during the
pendency of this action. (June 19, 2018 Order (Doc. 14 at
3-4).) Hanes was informed that she must file a Notice of
Change of address no later than fourteen (14) days before the
effective date of the change. (Id. at 4 (citing
LRCiv 83.3(d).) The Court also warned Hanes that her failure
to file a Notice of Change of Address “may result in
the dismissal of the action pursuant to Federal Rule of Civil
Procedure 41(b) for failure to comply with the Court's
Order and/or for failure to prosecute.” (Id.)
(citing King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.
1987) (“[p]ro se litigants must follow the same rules
of procedure that govern other litigants”),
overruled on other grounds by Lacey v. Maricopa
County, 693 F.3d 896 (9th Cir. 2012).)
On July
26, 2018, the State Defendants filed a Motion to Dismiss all
claims pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. (Doc. 35.) On July 27, 2018, the Banner
Defendants filed a Motion to Dismiss all claims pursuant to
Rule 12(b)(6). (Doc. 37.) On July 31, 2018, the Court issued
an order informing Hanes, among other things, that pursuant
to LRCiv 7.2(i)[3], her failure to respond to the State
Defendants' Motion to Dismiss on or before August 9,
2018, may be treated as a consent to the granting of the
Motion without further notice, and judgment may be entered
dismissing this action against the State Defendants pursuant
to LRCiv 7.2(i). (Doc. 40 at 2.) The Court issued a similar
order with regard to the Banner Defendants' Motion to
Dismiss, and set an August 10, 2018 due date for Hanes's
response to that Motion. (Doc. 39.) On August 7, 2018, an
envelope containing the July 31, 2018 Orders (Docs. 39, 40)
was returned to the Court bearing the notice: “Return
to Sender [/] Attempted - Not Known [/] Unable to
Forward.” (Doc. 47.) On August 21, 2018, the Banner
Defendants filed a Notice of Plaintiff's Failure to File
Response to Motion to Dismiss, requesting that this matter be
dismissed with prejudice. (Doc. 48.)
DISCUSSION
Hanes
has the general duty to prosecute this case. Fidelity
Philadelphia Trust Co. v. Pioche Mines Consolidated,
Inc., 587 F.2d 27, 29 (9th Cir. 1978). “A party,
not the district court, bears the burden of keeping the court
apprised of any changes in h[er] mailing address.”
Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988).
Hanes's failure to keep the Court informed of her current
address constitutes a failure to prosecute as well as a
failure to comply with LRCiv 83.3(d) and the Court's June
19, 2018 order (Doc. 14) advising her of same.
District
courts have the inherent power to dismiss a case sua
sponte for failure to prosecute. Link v. Wabash
Railroad Co., 370 U.S. 626, 629-31 (1962). In
appropriate circumstances, the Court may dismiss a complaint
for failure to prosecute even without notice or hearing.
Id. at 633. Additionally, “[f]ailure to follow
a district court's local rules is a proper ground for
dismissal, ” Ghazali v. Moran, 46 F.3d 52, 53
(9th Cir. 1995), as is failure to comply with the Court's
orders. Fed.R.Civ.P. 41(b). The Court may also summarily
dismiss this action pursuant to LRCiv 7.2(i) in light of
Hanes's failure to respond to the pending motions to
dismiss. See Ghazali, 46 F.3d at 53-54 (affirming
dismissal pursuant to local rule similar to LRCiv 7.2(i)
where the plaintiff failed to file an opposition to the
defendant's motion to dismiss).
The
same test applies regardless whether dismissal is for failure
to prosecute, failure to comply with the Court's orders
and rules, or failure to respond to a motion to dismiss under
LRCiv 7.2(i). In determining whether dismissal is warranted,
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)); see
also Ghazali, 46 F.3d at 53 (same). “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 three factors favor dismissal of this case as Hanes
has made no effort to continue with this action. The fourth
factor, as always, weighs against dismissal. The fifth factor
requires the Court to consider whether a less drastic
alternative is available. Because the Court has no mailing
address for Hanes, “[a]n order to show cause why
dismissal [is] not warranted or an order imposing sanctions
would only find itself taking a round trip tour through the
United States mail.” Carey, 856 F.2d at 1441.
Hanes has hailed multiple defendants to Court and required
them and the Court to expend time and resources addressing
this action. Yet, Hanes's failure to respond to the
pending motions to dismiss and her failure to keep the Court
informed of her current address evidence her abandonment of
this action. Dismissal with prejudice is appropriate in these
circumstances. Therefore, IT IS ORDERED that this action is
dismissed with prejudice for failure to prosecute and for
failure to comply with the Court's orders and rules.
The
Clerk of Court is directed to enter judgment accordingly and
to close its file in this action.
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