United States District Court, D. Arizona
REPORT AND RECOMMENDATION
F. Metcalf United States Magistrate Judge.
MATTER UNDER CONSIDERATION
incarcerated at the time in the Barchey Unit of the Arizona
State Prison Lewis Complex at Buckeye, Arizona, filed a
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254, on January 9, 2019 (Doc. 1). The Petition is
concerning a prison disciplinary proceeding. Service was
ordered on June 24, 2109 (Doc. 6).
August 19, 2019, Respondents filed their Answer (Doc. 12),
asserting mootness would result from Petitioner's release
scheduled for August 29, 2019, that Petitioner failed to
exhaust his state remedies, and the claims are without merit.
Respondents were directed to provide an update on
Petitioner's status and supplement their Answer to
address various issues. (Order 8/19/19, Doc. 13.)
responded (Doc. 14), reporting that rather than being
released on August 29, 2019, Petitioner was actually released
on April 6, 2019. Petitioner has never filed a notice of
change of address.
Court noted that none of the Court's mail to Petitioner
at the prison has been returned undeliverable (see Order
6/24/19, Doc. 6; Order 7/18/19, Doc. 9; Order 8/2/19, Doc.
11; Order 8/19/19, Doc. 13), nor had any notice been provided
by the prison pursuant to General Order 14-17, ¶ 5
(“If the prisoner refuses delivery or is no longer at
the designated Unit, Unit staff will indicate the reason for
non-delivery on the NEF and email it to the Court.”).
Upon filing, this case was made subject to the Court's
Electronic Submission of Prisoner Documents Pilot Project,
General Order 14-17, which provides for electronic service of
Court orders to prisoners in certain units of the Arizona
State Prison, including the Barchey Unit of ASPC-Lewis where
Petitioner was confined. Counsel for Respondents were
directed to inquire with prison authorities on the lack of
such notice. Petitioner was also ordered to either file a
notice of change of address or show cause for his failure to
do so, and was given 14 days to do so. (Order 9/13/19, Doc.
September 26, 2019, Respondents filed a Notice (Doc. 17) with
supporting declaration, reporting that “that
Lewis-Barchey Unit staff attempted to provide notice to the
Court that Petitioner had been released from prison, however,
they used an incorrect email address (the unattended NEF
address) to notify the Court.” (Id. at 2.) It
appears this was a training error with the correctional
officer responsible for receiving e-filings at Lewis complex.
still has not filed a notice of change of address from his
Petitioner's Petition is now ripe for dismissal for
failure to prosecute. Accordingly, the undersigned makes the
following proposed findings of fact, report, and
recommendation pursuant to Rule 8(b), Rules Governing Section
2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28
U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of
FAILURE TO PROSECUTE
Notice of Assignment (Doc.2) issued to Petitioner on January
9, 2019 (the day the Petition was filed and prior to
Petitioner's release), Petitioner was warned he must file
a Notice of Change of Address if his address changes and that
failure to comply would result in his case being dismissed.
Similarly, the Order issued March 6, 2019 (Doc. 5), directing
Petitioner to either file an in forma pauperis
application or pay the filing fee, warned:
Petitioner 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. Petitioner 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.
(Order 3/6/19, Doc. 5 at 2.) On March 18, 2018, Petitioner
responded to that Order by paying the filing fee (Doc. 5).
undersigned finds no reason to believe this Notice (Doc. 2)
and Order (Doc. 5) were not received by Petitioner. Despite
Petitioner's apparent release on April 6, 2019, and these