United States District Court, D. Arizona
HON. DOMINIC W. LANZA, UNITED STATES DISTRICT COURT JUDGE.
REPORT AND RECOMMENDATION
HONORABLE EILEEN S. WILLETT, UNITED STATES MAGISTRATE JUDGE
September 11, 2017, Arizona state prisoner Shawn Philip Smith
initiated this civil rights action pursuant to 42 U.S.C.
§ 1983. (Doc. 1). In the Order filed and electronically
sent to Plaintiff on October 30, 2017, the Court advised
Plaintiff that he must file a Notice of Change of Address if
his address changes and that the failure to do so may result
in the case being dismissed. (Doc. 5 at 5). It is assumed
that Plaintiff received the Order as it was not returned to
the Court as undeliverable. Plaintiff subsequently filed a
“Motion for Change of Address” (Doc. 10) on
January 19, 2018.
February 15, 2018, the Court issued an Order screening
Plaintiff's First Amended Complaint (Doc. 8) and allowing
Plaintiff's claims to proceed against certain Defendants.
(Doc. 12). The Order was electronically sent to Plaintiff,
but was returned to the Court as undeliverable with a
notation that Plaintiff “is out to court with a
different agency and is not here at Lewis Complex to receive
the attached E-file.” (Doc. 13).
March 7, 2018, Plaintiff notified the Court of his change of
address. (Doc. 14). The Clerk of Court mailed the February
15, 2018 Order (Doc. 12) to Plaintiff's new address, but
it was returned to the Court with the notation “Return
to Sender/Unclaimed/Not in Custody.” (Doc. 15). On
April 20, 2018, the Court observed that Plaintiff provided
the Court with an incorrect inmate number and directed the
Clerk of Court to update Plaintiff's inmate number and
resend the Court's prior Order. (Doc. 16). However, on
April 30, 2018, the Order (Doc. 12) was again returned to the
Court as undeliverable with the notation “Return to
Sender/name and # do not match.” (Doc. 17). The Court
notes that the returned envelope was correctly addressed to
Plaintiff at the address provided in his March 7, 2018
“Motion for Change of Address” (Doc. 14) and
accurately reflects Plaintiff's Arizona Department of
Corrections inmate number as #174287. The Court also notes
that the Arizona Department of Corrections' online inmate
database indicates that Plaintiff was moved on June 22, 2018.
Plaintiff has not filed a Notice of Change of Address
reflecting his move.
October 30, 2018, the Court ordered Plaintiff to show cause
no later than November 16, 2018 why the case should not be
dismissed without prejudice pursuant to Federal Rule of Civil
Procedure 41(b) for Plaintiff's failure to comply with
the Court's Order and to prosecute the case. (Doc. 18 at
2). The Order was returned to the Court marked “Return
to Sender/Unclaimed/Not in Custody/Unable to Forward.”
(Doc. 20). In addition, on November 13, 2018, a Minute Order
(Doc. 19) was returned marked “Return to Sender/Name
and # Do Not Match/Return to Sender/Unclaimed/Unable to
Forward” (Doc. 21). On November 13, 2018, Docket entry
reflects “Mail sent to Shawn Philip Smith has been
returned 2 or more times. Pursuant to General Order no
further mailings will be sent until a new address is
received.” As of the date of filing this Report and
Recommendation, the Plaintiff has not filed a response to the
Court's Order (Doc. 18) as required, and the time to do
so has passed. Nor has the Plaintiff filed a Notice of Change
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. 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
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. Plaintiff has abandoned his case.
The undersigned will recommend dismissal of Plaintiff's
First Amended Complaint (Doc. 8) without prejudice.
reasons set forth herein, IT IS RECOMMENDED
that the First Amended Complaint (Doc. 8) be dismissed
without prejudice for Plaintiff's failure to comply with
the Court's Orders and to prosecute ...