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Rodriguez v. Ryan

United States District Court, D. Arizona

October 1, 2019

Fermin Rodriguez, Petitioner
v.
Charles L. Ryan, et al., Respondents.

          REPORT AND RECOMMENDATION

          James F. Metcalf United States Magistrate Judge.

         I. MATTER UNDER CONSIDERATION

         Petitioner, 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).

         On 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.)

         Respondents 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.

         The 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. 16.)

         On 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.

         Petitioner still has not filed a notice of change of address from his prison address.

         The 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 Civil Procedure.

         II. FAILURE TO PROSECUTE

         In the 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).

         The 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 ...


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