United States District Court, D. Arizona
REPORT AND RECOMMENDATION
CAMILLE D. BIBLES UNITED STATES MAGISTRATE JUDGE.
THE HONORABLE DAVID G. CAMPBELL:
who was then incarcerated, initiated this matter on July 11,
2017, by filing a pro se Civil Rights Complaint pursuant to
42 U.S.C. § 1983 and a motion for leave to proceed
in forma pauperis. (ECF Nos. 1 & 2). In the
Notice of Assignment mailed to Plaintiff on July 14, 2017,
the same day his pleadings were docketed, Plaintiff was
warned he must file a Notice of Change of Address if his
address changed and that failure to comply with this
requirement could result in his case being dismissed. (ECF
No. 5). Plaintiff filed an Amended Complaint on August 9,
2017, and a Notice of Party's Change of Address on
September 8, 2017. (ECF Nos. 6 & 9). Plaintiff lodged a
Second Amended Complaint on October 24, 2017. (ECF No. 13).
On December 12, 2017, the Court granted Plaintiff leave to
proceed in forma pauperis and ordered him to file a
third amended complaint. (ECF No. 14). Plaintiff docketed a
Third Amended Complaint on January 16, 2018. (ECF No. 17). In
an order dated April 10, 2018, the Court ordered Defendant
Nieto to answer Count One of the Third Amended Complaint and
dismissed all other counts and defendants. (ECF No. 22). The
Court again warned Plaintiff:
Plaintiff must file and serve a notice of a change of address
in accordance with Rule 83.3(d) of the Local Rules of Civil
Procedure. Plaintiff must not include a motion for other
relief with a notice of change of address. Failure to comply
may result in dismissal of this action.
(Id.). Plaintiff returned a service packet for
Defendant Nieto to the Court in compliance with the
Court's order at ECF No. 22. Defendant was served and
answered the Third Amended Complaint, and a scheduling order
was issued on June 27, 2018. (ECF Nos. 26 & 29).
continued to litigate this matter until September 21, 2018.
On November 7, 2018, the Court was notified by the Maricopa
County Sheriff's Office that Plaintiff was no longer in
custody. On January 17, 2019, the Court allowed Plaintiff
until February 7, 2019, to show cause why this matter should
not be dismissed for Plaintiff's failure to prosecute and
for his failure to notify the Court of his current address.
(ECF No. 56). Defendant Nieto filed a Motion for Summary
Judgment on January 23, 2019. (ECF No. 57). Plaintiff was
ordered to respond to the Motion for Summary Judgment by
February 22, 2019. (ECF No. 60). Plaintiff has not responded
to the Motion for Summary Judgment nor the Order to Show
Cause. On February 28, 2019, mail sent to Plaintiff was
returned to the Court as undeliverable because Plaintiff is
no longer in custody. (ECF No. 64).
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). It is the duty of a
plaintiff who has filed a pro se action to keep the Court
apprised of his 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. 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 prosecute. Rule 41(b) of the
Federal Rules of Civil Procedure provides that “[f]or
failure of the plaintiff to prosecute or to comply with these
rules or any order of court, a defendant may move for
dismissal of an action.” In Link v. Wabash Railroad
Company, 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. 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, 856 F.2d at 1440 (internal
quotations omitted). “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. Additionally, Plaintiff's failure to
respond to Defendant Nieto's Motion for Summary Judgment
implicates the fourth factor. The fifth factor requires the
Court to consider whether a less drastic alternative is
available. Without Plaintiff's current address, however,
less drastic alternatives are bound to be futile.
Furthermore, Defendant Nieto's Motion for Summary
Judgment appears to be meritorious.
IS THEREFORE recommended that this matter be
dismissed for Plaintiff's failure to prosecute.
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), Federal Rules of Appellate
Procedure, should not be filed until entry of the District
to Rule 72(b), Federal Rules of Civil Procedure, the parties
shall have fourteen (14) days from the date of service of a
copy of this recommendation within which to file specific
written objections with the Court. Thereafter, the parties
have fourteen (14) days within which to file a response to
the objections. Pursuant to Rule 7.2, Local Rules of Civil
Procedure for the United States District Court for the
District of Arizona, objections to the Report and
Recommendation may not exceed seventeen (17) pages in length.
to timely file objections to any factual or legal
determinations of the Magistrate Judge will be considered a
waiver of a party's right to de novo appellate
consideration of the issues. See United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
banc). Failure to timely file objections to any factual or
legal determinations of the Magistrate Judge will constitute
a waiver of a party's right to appellate review of the
findings of fact and conclusions of law in an order or
judgment entered pursuant to the recommendations of the