Opinion
CV-20-01823 PHX SMB (CDB)
05-19-2022
Mark Anthony Acosta, Plaintiff, v. Alejandro Gallego, etc., Defendants.
THE HONORABLE SUSAN M. BRNOVICH:
REPORT AND RECOMMENDATION
Camille D. Bibles United States Magistrate Judge
Plaintiff, who was then incarcerated, initiated this matter on September 17, 2020, 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 September 22, 2020, 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. 4). On October 29, 2020, the Court granted Plaintiff leave to proceed in forma pauperis, ordered Defendants Gallegos and Contreras to answer Count One of the Complaint, and dismissed Defendant Kunze and Counts Two and Three of the Complaint. (ECF No. 9). In the order at ECF No. 9 the Court advised 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.
Defendants Gallegos and Contreras were served and answered the complaint (ECF No. 19 & 24). In a scheduling order issued January 20, 2021, the Court ordered all discovery be completed by May 20, 2021 and dispositive motions be filed no later than July 19, 2021. (ECF No. 20). The parties engaged in discovery and Defendants filed a motion for summary judgment on July 19, 2021. (ECF No. 47). Plaintiff filed a motion to dismiss (ECF No. 50) and an amended complaint (ECF No. 52). Defendants filed a motion to dismiss Plaintiff's amended complaint. (ECF No. 55). Plaintiff responded to the motion to dismiss on November 18, 2021. (ECF No. 58).
In an order entered February 25, 2022, the Court denied summary judgment in favor of Defendants, denied Plaintiff's motion to dismiss as moot, and construed Defendants' motion at ECF No. 55 as a motion to strike and ordered the amended complaint at ECF No. 52 be stricken from the record. (ECF No. 61). The copy of the order at ECF No. 61 mailed to Plaintiff was returned as undeliverable, with a notation that Plaintiff was no longer in custody. (ECF No. 62). No further activity has occurred in this case; Plaintiff's last appearance in this case was six months ago, on November 18, 2021.
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. With regard to the fourth factor, it does not appear Plaintiff wishes to achieve a resolution of this case on the merits. 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.
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)(2), 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(e)(3), 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 ten (10) 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.