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Gerth v. Foster

United States District Court, D. Arizona

January 8, 2019

Arthur F Gerth, Plaintiff,
v.
C. Foster, Defendant.

          REPORT AND RECOMMENDATION

          HONORABLE EILEEN S. WILLETT, UNITED STATES MAGISTRATE JUDGE.

         TO THE HONORABLE SUSAN M. BRNOVICH, UNITED STATES DISTRICT JUDGE:

         Plaintiff 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).

         On 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 passed.

         A 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).

         While 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”).

         Accordingly, 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.

         This 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 ...


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