United States District Court, D. Arizona
Honorable Jennifer G. Zipps United States District Judge
record reflects that pro se Plaintiff Maurice Hunt
failed to comply with this Court's rules to keep the
Court informed of his current address. Therefore, the Court
will dismiss this action.
February 27, 2019, the same date that Hunt filed his
Complaint, the Clerk of Court sent Hunt a Notice of
Assignment warning him that he “must file a Notice of
Change of Address if your address changes” and that
failure to do so “will result in your document being
STRICKEN and/or your case being DISMISSED.” (Doc. 3, p.
2). The Court's Local Rules also require Hunt to keep the
Court apprised of a change of address. See Rules of
Practice of the U.S. District Court for the District of
Arizona, LRCiv 83.3(d) (an unrepresented party who is
incarcerated must submit a notice of change of address within
seven (7) days after the effective date of the change). On
July 2, 2019, Court mail sent to Hunt at his address of
record was returned as “undeliverable” and
“unable to forward.”(Doc. 5.)
Court will dismiss this action pursuant to Rule 41(b), Fed.
R. Civ. P., based upon Hunt's failure to prosecute his
case and to comply with the Court's rules. Hunt 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). “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).
Hunt's failure to keep the Court informed of his current
address constitutes a failure to prosecute as well as a
failure to comply with LRCiv 83.3(d).
courts have 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. Additionally, “[f]ailure to follow a district
court's local rules is a proper ground for dismissal,
” Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir.
same test applies regardless whether dismissal is for failure
to prosecute or failure to comply with the Court's rules.
In determining whether dismissal is warranted, 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)); see
also Ghazali, 46 F.3d at 53 (same). “The first two
of these factors favor the imposition of sanctions in most
cases, while the fourth 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 three factors favor dismissal of this case as Hunt
has made no effort to continue with this action. The fourth
factor, as always, weighs against dismissal. The fifth factor
requires the Court to consider whether a less drastic
alternative is available. Because the Court has no mailing
address for Hunt, “[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.” Carey, 856 F.2d at 1441.
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 unless the court
states otherwise in its dismissal order. Fed.R.Civ.P. 41(b).
In the instant case, a dismissal with prejudice would be
unnecessarily harsh given that this action can be dismissed
without prejudice pursuant to Rule 41(b) of the Federal Rules
of Civil Procedure. Therefore, IT IS ORDERED that this action
is dismissed without prejudice for failure to prosecute and
for failure to comply with the Court's rules.
Clerk of Court is directed to enter judgment accordingly and
to close its file in this action.
 The returned mail included the
Court's June 17, 2019 Order granting Plaintiff
30-days' leave to file a first amended complaint and to
either pay the required fees or file an application to
proceed in forma pauperis. (Doc. 4.) The Order also
directed the Clerk of Court to dismiss this action and to
deny any pending unrelated motions as moot if Plaintiff
failed to comply with the Order.
The Court notes that when Petitioner filed this
action, he was incarcerated at the United States
Penitentiary-Tucson in Arizona. As of the date of this Order,
however, Petitioner is incarcerated at the United States