United States District Court, D. Arizona
REPORT AND RECOMMENDATION
BRIDGET S. BADE, UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on its own review. Plaintiff,
proceeding pro se, brings this action pursuant to 42 U.S.C.
§ 1983. (Doc. 1.) On October 9, 2018, the Court entered
an order screening the Complaint and directing Plaintiff to
notify the Court in writing of any change in his address.
(Doc. 6.) The Court warned Plaintiff that failure to do so
could result in dismissal of this action. (Id. at 4
(citing LRCiv 83.3(d)).).
November 14, 2018, the Court received returned mail addressed
to Plaintiff that was marked “return to sender”
“unable to forward.” (Doc. 8.) Plaintiff's
address had apparently changed, but Plaintiff had not
notified the Court of his new address. Therefore, on November
21, 2018, the Court ordered Plaintiff either to notify the
Court of his new address or to show cause why this matter
should not be dismissed without prejudice pursuant to Rule
41(b) of the Federal Rules of Civil Procedure based on
Plaintiff's failure to comply with the Court's
October 9, 2018 Order. (Doc. 9.)
date, Plaintiff has not notified the Court of his current
address or responded to the November 21, 2018 Order. Because
Plaintiff has not provided notice of his current address and
has not responded to the order to show cause, the Court
considers whether to dismiss this case. Plaintiff has the
general duty to prosecute this case. Fidelity
Philadelphia Trust Co. v. Pioche Mines Consol., Inc.,
587 F.2d 27, 29 (9th Cir. 1978). A plaintiff who has filed a
pro se action must keep the court informed of his
current address and comply with the court's orders in a
timely fashion. The Court does not have an affirmative
obligation to locate a plaintiff. “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).
Plaintiff's failure to inform the Court of his current
address constitutes failure to prosecute his case and a
failure to comply with the Court's orders.
41(b) provides that “[i]f 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.” Fed.R.Civ.P. 41(b). The Supreme Court has
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) appears to
require a motion from a party. See Link v. Wabash R.R.
Co., 370 U.S. 626, 629-31 (1962). Moreover, in
appropriate circumstances, the Court may dismiss an action
for failure to prosecute even without notice or hearing.
Id. at 633.
determining whether Plaintiff's failure to prosecute
warrants dismissal of the case, the Court weighs 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. Johnston, 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 address prevents the case from proceeding in the
foreseeable future. The fourth factor, as always, favors
disposition on the merits and weighs against dismissal. The
fifth factor requires the Court to consider whether a less
drastic alternative is available. Here, the Court has already
issued an order to show cause. See Carey, 856 F.2d
Court finds that a sanction less drastic than dismissal with
prejudice is available. Rule 41(b) provides that,
“[u]nless the dismissal order states otherwise, ”
a dismissal for failure to prosecute “operates as an
adjudication on the merits” Fed.R.Civ.P. 41(b). In this
case, the Court finds that dismissal with prejudice would be
unnecessarily harsh. Therefore, the Court recommends that
this matter be dismissed without prejudice pursuant to Rule
41(b). See Isley v. Schriro, 2007 WL 3287587, at *2
(D. Ariz. Nov. 5, 2007) (dismissing § 2254 petition
without prejudice based on petitioner's failure to notify
court of his current address).
IT IS RECOMMENDED that this action be
dismissed without prejudice for failure to comply with Court
orders pursuant to Rule 41(b).
recommendation is not an order that is immediately appealable
to the Ninth Circuit Court of Appeals. Any notice of appeal
pursuant to Rule 4(a)(1) of the Federal Rules of Appellate
Procedure 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. 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.
to file timely objections to any factual determinations of
the Magistrate Judge may be considered a waiver of a
party's right to appellate review of the findings of fact
in an order or judgment entered pursuant to ...