Opinion
No. CV-05-1992-PHX-SRB (JCG).
May 4, 2006
REPORT AND RECOMMENDATION
Emilio Barron-Antelo, Plaintiff, was confined in the Durango Jail in Phoenix, Arizona, when he filed with the Clerk of the Court on July 5, 2005, a pro se Civil Rights Complaint (Doc. No. 1) pursuant to 42 U.S.C. § 1983. Plaintiff has been authorized to proceed In Forma Pauperis, and the Court has directed monthly payments to be made from his prison account.
According to the Court's docket, mail sent to Green on March 6, 2006 was returned because Green had been released from prison. (Doc. Nos. 5 6.)
On February 27, 2006, the Court entered an order directing the Clerk of the Court to mail a service packet to the Plaintiff, due for return to the Court on March 20, 2006 (Doc. No. 3). The docket indicates that the Clerk of Court mailed the order and service packet accordingly. On March 6, 2006, the mail was returned to the Clerk of the Court with notations indicating "Return to Sender . . . Released" (Doc. No. 5). The docket indicates that the Clerk of the Court researched Plaintiff's address to no avail. Since then, Plaintiff has failed to file a Notice of Change of Address, or in any way to notify the Court of his whereabouts.
Rule 3.4(a) of the Local Rules of Civil Procedure (LRCiv) requires that an incarcerated litigant comply with the instructions attached to the Court-approved Complaint 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." (Information and Instructions for a Prisoner Filing Civil Rights Complaint at 2).
Also, in its Notice of Assignment the Court warned Plaintiff that "[f]ailure to comply with the following rules will result in your document being STRUCK and/or your case being DISMISSED" (Doc. No. 2). One of the rules listed was that "[y]ou must file a Notice of Change of Address if your address changes." ( Id.).
Plaintiff 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). In this regard, it is the duty of a plaintiff who has filed a pro se action to keep the Court appraised of his or her 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 his 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 failure to prosecute.
In addition, Plaintiff has failed to return a completed service packet, to obtain waiver of service or to complete service of the Summons and Complaint on Defendants in this case. The order that was mailed to Plaintiff along with the service packet notified Plaintiff that failure to comply with every provision of the order would result in dismissal pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. (Doc. No. 3). The order contained provisions that required Plaintiff to return the service packet within 20 days of the date of filing of the order. Plaintiff was also notified that if he failed to comply with the order, the United States Marshal would not provide service of process. Plaintiff was further notified within the order that he must complete service of the Summons and Complaint on the Defendants within 120 days of the filing date of the complaint or within 60 days of the filing of the order, whichever was later. The order notified Plaintiff that failure to comply with either provision would result in dismissal of his case. More than 120 days have passed since Plaintiff filed his complaint, and to date service has not been completed. Plaintiff's failure to complete service of the Summons and Complaint on the Defendants within 120 days of the filing date of the complaint or within 60 days of the filing of the order also constitutes failure to prosecute.
A federal district court has 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. 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 v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (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 of this case. Plaintiff's failure to keep the Court informed of his address, actively participate in this case or serve Defendants prevents the case from proceeding in the foreseeable future. The fourth factor, as always, weighs against dismissal. The fifth factor requires the Court to consider whether a less drastic alternative is available.
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 upon the merits "[u]nless the court in its order for dismissal otherwise specifies." In the instant case, a dismissal with prejudice would be unnecessarily harsh as the Complaint and this action can be dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
RECOMMENDATION
Based on the foregoing and pursuant to 28 U.S.C. § 636(b) and Local Rule 1.17(d)(2), Rules of Practice of the United States District Court, District of Arizona, the Magistrate Judge recommends that Plaintiff's Complaint (Doc. No. 1) and this action be DISMISSED WITHOUT PREJUDICE pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute.
Pursuant to 28 U.S.C. § 636(b), any party may serve and file written objections within 10 days after being served with a copy of this Report and Recommendation. If objections are not timely filed, they may be deemed waived. The parties are advised that any objections filed are to be identified with the following case number: CV-05-1992-PHX-SRB.