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Mishenko v. Mesa Police Department

United States District Court, D. Arizona

March 11, 2019

Francisco Antonio Mishenko, III, Plaintiff,
v.
Mesa Police Department, et al., Defendants.

          REPORT AND RECOMMENDATION

          CAMILLE D. BIBLES UNITED STATES MAGISTRATE JUDGE.

         TO THE HONORABLE DAVID G. CAMPBELL:

         Plaintiff, 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).

         Plaintiff 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).

         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). 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).

         Here, 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.[1]

         IT IS THEREFORE recommended that this matter be dismissed for Plaintiff's failure to prosecute.

         This 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 Court's judgment.

         Pursuant 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.

         Failure 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 Magistrate Judge.

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