Opinion
CV-23-02569-PHX-ROS (MTM)
07-26-2024
James Patrick Thomas Bernardo, Plaintiff, v. Paul Penzone, et al., Defendants.
HONORABLE MICHAEL T. MORRISSEY UNITED STATES MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
TO THE HONORABLE ROSLYN O. SILVER, SENIOR UNITED STATES DISTRICT JUDGE:
Plaintiff James Patrick Thomas Bernardo, who is confined in a Maricopa County Jail, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1). The Court screened the matter and substituted current Maricopa County Sheriff Russell Skinner for Defendant Penzone in his official capacity and ordered Defendants Skinner, Penzone, Contino, and Campa to answer Count Three. (Doc. 6.) The Court dismissed the remaining claims and Defendants without prejudice. (Doc. 6.) In the same Order, the Court required Plaintiff to “file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure.” (Doc. 6.) The Court stated, “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.” (Doc. 6.)
On June 27, 2024, the record reflected that mail sent from the Clerk of Court to Plaintiff was returned as undeliverable stating, “Return to Sender - No Longer in Custody.” (Doc. 7.) Thus, the Court issued an Order requiring Plaintiff to either (1) file a notice of change of address, or (2) show cause why this matter should not be dismissed for failure to prosecute in light of his failure to file a notice of change of address. (Doc. 8.) To date, Plaintiff has failed to comply with the Court's Order and the time for doing so has expired. The Court, therefore, will determine whether dismissal is appropriate.
Plaintiff has the general duty to prosecute this case. Fidelity Phila. Trust Co. v. Pioche Mines Consol., 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 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 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.
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) 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 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)).
Here, the first and second factors favor dismissal. Plaintiff's failure to participate meaningfully in this action or comply with Court Orders prevents this action from proceeding, and neither the public's interest in expeditious resolution of litigation nor the Court's need to manage its docket are served by allowing this action to continue. As to the third factor, dismissal of the action for failure to prosecute rather than on the merits will not prejudice Defendants. The fourth factor favoring adjudication on the merits weighs against dismissal. See Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir. 1990) (“The first two . . . factors favor the imposition of sanctions in most cases, while the fourth factor cuts against a default or dismissal sanction.”).
The fifth and final factor requires the Court to consider whether a less drastic alternative than dismissal is available. The Court already took the less drastic alternative of issuing an Order to Show Cause before dismissing this action outright, and Plaintiff failed to show cause why this action should not be dismissed. It therefore appears that Plaintiff has lost interest in prosecuting this action. Additionally, because it appears that Plaintiff is no longer receiving mail at his last known address, any further warnings are bound to be futile. See Carey, 856 F.2d at 1441 (“An order to show cause why dismissal is not warranted . . . would only find itself taking a round trip tour through the United States mail.”). Realistically, the only less drastic option remaining is dismissal without prejudice. 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.” The Court will therefore recommend dismissal of this action without prejudice for failure to prosecute pursuant to Rule 41(b). See Ash v. Cvetkov, 739 F.2d 493, 497 (9th Cir. 1984) (“dismissal without prejudice is a more easily justified sanction for failure to prosecute”).
Accordingly, IT IS RECOMMENDED that Plaintiff's Complaint and this action be dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rules of Appellate Procedure, Fed. R. App. P. 4(a)(1), should not be filed until entry of the district court's judgment. Pursuant to 28 U.S.C. § 636(b), any party may file and serve written objections within 14 days after being served with a copy of this Report and Recommendation. Pursuant to Rule 7.2(e)(3), Local Rules of Civil Procedure, objections to the Report and Recommendation may not exceed ten (10) pages. If objections are not timely filed, the party's right to de novo review by the District Judge is waived. See U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).