United States District Court, D. Arizona
Honorable Diane J. Humetewa United States District Judge
filed a pro se Civil Rights Complaint pursuant to 42 U.S.C.
§ 1983 on September 18, 2017 (Doc. 1).
Notice of Assignment issued September 18, 2017 (Doc. 4),
Plaintiff was warned that dismissal could result from failure
to file a notice of change of address. In an Order entered
January 23, 2018 (Doc. 6), Plaintiff was cautioned that
failure to immediately file a notice of change of address
"may result in the dismissal of this action." On
December 10, 2018, the Clerk of the Court received a notice
from MCSO Inmate Legal Services that Plaintiff was no longer
in custody. Plaintiff had not filed a notice of change of
address. On January 2, 2019, the Court ordered (Doc. 44)
Plaintiff to either (1) show cause as to why this action
should not be dismissed for failure to prosecute or (2) file
a notice of change of address with the court, reflecting
Plaintiff's current address. Plaintiff's copy of that
Order was also returned undeliverable (Doc. 45). Plaintiff
has not responded.
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). In this regard,
it is the duty of a plaintiff who has filed a pro se action
to keep the Court apprised of his or her current address and
to comply with the Court's orders in a timely fashion.
This Court does not have an affirmative obligation to locate
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 keep
the Court informed of his new address constitutes failure to
41(b) of the Federal Rules of Civil Procedure 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.” 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 Rule 41(b) of the
Federal Rules of Civil Procedure appears to require a motion
from a party. Moreover, in appropriate circumstances, the
Court may dismiss a complaint 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 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 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.
Without Plaintiff's current address, however, certain
alternatives are bound to be futile. Here, as in
Carey, “[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.” 856 F.2d at 1441.
Court finds that only one less drastic sanction is
realistically available. Rule 41(b) provides that a dismissal
for failure to prosecute operates as an adjudication upon the
merits “[u]nless the court in its order for dismissal
otherwise specifies.” In the instant case, the Court
finds that a dismissal with prejudice would be unnecessarily
harsh. The Complaint and this action will therefore be
dismissed without prejudice pursuant to Rule 41(b) of the
Federal Rules of Civil Procedure.
IS ORDERED that reference of this matter to the
magistrate judge is withdrawn.
IS FURTHER ORDERED pursuant to Rule 41(b) of the
Federal Rules of Civil Procedure this action is dismissed
without prejudice and the Clerk ...