United States District Court, D. Arizona
REPORT AND RECOMMENDATION
HONORABLE EILEEN S. WILLETT, UNITED STATES MAGISTRATE JUDGE.
THE HONORABLE SUSAN M. BRNOVICH, UNITED STATES DISTRICT
Arthur F. Gerth, who was formerly confined in a Maricopa
County Jail, filed a pro se civil rights Complaint pursuant
to 42 U.S.C. § 1983 (Doc. 2). On November 13, 2018, the
Minute Order (Doc. 8) sent from the Clerk of Court to
Plaintiff was returned to the Court as undeliverable (Doc.
9). The returned envelope is marked with a handwritten note:
“Return to Sender Addressee is not at this
address” and stamped “Return to
Sender/Attempted-Not Known/Unable to Forward.”
(Id.). The Court previously warned Plaintiff that
the failure to file a notice of change of address may result
in the dismissal of this action. (Doc. 7 at 3).
November 16, 2018, the Court ordered Plaintiff to show cause
no later than December 17, 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. 10).
The Court's Order (Doc. 10) was returned to sender,
stamped “Return to Sender/Not Deliverable as
Addressed/Unable to Forward” with a hand-written
notation: “Return to sender/Not at this address.”
(Doc. 13). As of the date of this Report and Recommendation,
the Plaintiff has failed to file a Notice of Change of
Address. Plaintiff has failed to respond to the Court's
Order to show cause (Doc. 10), and the time to do so has
federal district court has 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. In 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
v. King, 856 F.2d 1439, 1440 (9th Cir. 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 fourth factor above weighs against dismissal of this
case, factors one through three above favor dismissal.
Plaintiff's failure to keep the Court informed of his
address prevents this case from proceeding. In addition, the
Court warned Plaintiff that the Court may dismiss his case
for failure to file and serve a notice of a change of address
in accordance with Rule 83.3(d) of the Local Rules of Civil
Procedure. Regarding the fifth factor, the undersigned finds
that dismissing the case with prejudice would be
unnecessarily harsh given the availability of the less
drastic sanction of dismissal without prejudice. Fed.R.Civ.P.
41(b) (dismissal for failure to prosecute operates as an
adjudication upon the merits “[u]nless the court in its
order for dismissal otherwise specifies”).
IT IS RECOMMENDED that this case be
DISMISSED WITHOUT PREJUDICE
for failure to prosecute pursuant to Rule 41(b) of the
Federal Rules of Civil Procedure.
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