United States District Court, D. Arizona
ORDER
David
G. Campbell Senior United States District Judge
Plaintiff
Francisco Aldrete, who was then-confined in a Maricopa County
Jail, filed this action on June 7, 2017.[1] (Doc. 1.)
Aldrete's claims arose on June 11, 2015, when he was in
Maricopa County Sheriff's Office custody and was
appearing in Maricopa County Superior Mental Health Court.
(Doc. 1 at 4.) Plaintiff alleges that after exiting the
courtroom, the escorting officer became verbally and
physically aggressive, and then members of a Special Response
Team, who were escorting a different detainee, joined in and
physically assaulted Plaintiff. (Id.) Plaintiff
states that he was shackled and restrained and did not
threaten anyone's safety. He was slammed to the floor,
and Defendant jumped on his back and kneed him in the neck,
causing a laceration and other injuries. (Id. at
4-6.)
In
September 2018, Defendant filed a Motion for Summary
Judgment. (Doc. 40.) The Court issued an Order with the
Notice required under Rand v. Rowland, 154 F.3d 952,
962 (9th Cir. 1998) (en banc), which informed Plaintiff of
his obligation to respond to the Motion and the requirements
under Federal Rule of Civil Procedure 56. (Doc. 43.)
Plaintiff sought a stay of all deadlines until November or
December 2019, when he expected to be released from custody.
The Court denied the stay, but Plaintiff did not respond to
the motion. On March 5, 2019, the Court denied
Defendant's motion. (Doc. 48.)
Plaintiff
has not filed anything in this matter since May 2019. (Doc.
65.) Further, it appears from the Arizona Department of
Corrections website that Plaintiff was released from custody
on October 31, 2019.[2] Thus, Plaintiff appears to have abandoned
his claim against Defendant in this action.
Rule
3.4 of the Local Rules of Civil Procedure requires an
incarcerated litigant to comply with the instructions
attached to the court-approved form. Those instructions
state: “You must immediately notify the clerk . . . in
writing of any change in your mailing address. Failure to
notify the court of any change in your mailing address may
result in the dismissal of your case.” (Instructions
for a Prisoner Filing a Civil Rights Complaint at 2.)
Plaintiff
has a general duty to prosecute his case. Fidelity
Philadelphia Trust Co. v. Pioche Mines Consolidated,
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. “A
party, not the district court, bears the burden of keeping
the court apprised of any changes in [her] mailing
address.” Carey v. King, 856 F.2d 1439, 1441
(9th Cir. 1988). Plaintiff's failure to keep the Court
informed of his new address constitutes a 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 Co., 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) appears
to require a motion from a party. Moreover, in appropriate
circumstances the Court may dismiss a complaint or petition
for failure to prosecute even without notice or hearing.
Id. at 633.
In
determining whether Plaintiff's failure to prosecute
warrants dismissal, 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)). “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.
Plaintiff's failure to participate in this case and to
keep the Court informed of his address prevents the case from
proceeding. The fourth factor, as always, weighs against
dismissal. The fifth factor requires the Court to consider
whether a less drastic alternative is available. Without
Plaintiff's current address, however, certain
alternatives are bound to be futile. Here, as in
Carey, “[a]n order to show cause why dismissal
is not warranted . . . would only find itself taking a round
trip tour through the United States mail.” 856 F.2d at
1441.
The
Court finds that only one less drastic sanction is
realistically available. Rule 41(b) provides that a dismissal
for failure to prosecute operates as an adjudication on the
merits “[u]nless the court in its order for dismissal
otherwise specifies.” The Court finds that a dismissal
with prejudice would be unnecessarily harsh. The Complaint
and this action will therefore be dismissed without prejudice
pursuant to Rule 41(b).
IT
IS ORDERED that Plaintiffs Complaint (Doc. 1) and
this action are dismissed without prejudice pursuant to Rule
41(b) of the Federal Rules of Civil Procedure for failure to
prosecute. The Clerk of Court must enter judgment
accordingly.
---------
Notes:
[1] Plaintiff was later confined in the
Arizona State Prison Complex-Yuma in San Luis,
...