Opinion
CV-21-00236-PHX-DWL (JZB)
01-04-2022
Zaiqeri Garcia, Plaintiff, v. J Adam Shepherd, et al., Defendants.
TO THE HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE:
REPORT & RECOMMENDATION
HONORABLE JOHN Z. BOYLE UNITED STATES MAGISTRATE JUDGE
Plaintiff Zaiqeri Garcia, proceeding pro se, brought this action pursuant to 42 U.S.C. § 1983. On June 28, 2021, the Court screened Plaintiff's Third Amended Complaint and directed Defendant Shepherd to answer the claims against him therein. In that same order, the Court warned Plaintiff that if he is released or has a change of address while this case is pending, Plaintiff must notify the Court of his change of address. The Court further warned that failure to comply with the Court's order may result in dismissal of this action. On September 28, 2021, the Court's Scheduling Order that was mailed to Plaintiff was returned as undeliverable because Plaintiff is no longer in custody. On December 16, 2021, the Court issued an Order to Show Cause, directing Plaintiff to file a change of address on or before December 30, 2021. To date, no change of address has been filed.
Accordingly, the Court will recommend this action be dismissed.
I. Background.
On February 8, 2021, Plaintiff, who was formerly confined in the Gila County Jail in Globe, Arizona, and approximately 40 other prisoners filed a joint pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (doc. 1) in Myers, et. al. v. Shepherd, CV-21-00212-PHX-JAT (CDB) (D. Ariz. 2021). (See Doc. 2.) On February 16, 2021, the Court issued an Order severing Plaintiff's Complaint from the Myers action, dismissing the Complaint without prejudice, and granting Plaintiff leave to amend his Complaint within 30 days. (Doc. 2).
On March 3, 2021, Plaintiff filed his Amended Complaint (doc. 4) and a concurrent Application for Leave to Proceed In Forma Pauperis (doc. 5). On March 12, 2021, the Court granted Plaintiff's Application (doc. 5), and dismissed Plaintiff's Amended Complaint (doc. 4) for failure to state a claim. (Doc. 7.) The Court granted Plaintiff leave to file a second amended complaint within 30 days. (Id.)
On March 22, 2021, Plaintiff filed his Second Amended Complaint (SAC). (Doc. 9.) On March 25, 2021, Plaintiff filed additional attachments to his SAC. (Doc. 10.) On May 6, 2021, the Court screened Plaintiff's SAC, and dismissed the SAC for failure to state a claim. (Doc. 12.) The Court again granted Plaintiff leave to file an amended complaint within 30 days. (Id.)
The Court also ordered the Clerk to combine Documents 9 and 10 into a single document, to be docketed as Plaintiff's SAC (doc. 11). (Doc. 12.)
On June 21, 2021, Plaintiff filed his Third Amended Complaint (TAC). (Doc. 14.) On June 28, 2021, the Court screened Plaintiff's TAC, and ordered Defendant Shepherd to answer the allegations against him in Count One. (Id.) In that same Order, the Court warned Plaintiff that if he “is released while this case remains pending, and the filing fee has not been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court that he intends to pay the unpaid balance of his filing fee within 120 days of his release or (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may result in dismissal of this action.” (Doc. 15 at 8.) The Court further warned that “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.” (Doc. 15 at 8.)
On July 16, 2021, Defendant Shepherd waived service in this action. (Doc. 16.) On September 14, 2021, Defendant Shepherd filed his Answer to Plaintiff's TAC. (Doc. 17.) On September 17, 2021, the Court issued a Scheduling Order in this action. (Doc. 20.) That same day, the Clerk sent Plaintiff a copy of the Court's Scheduling Order (id.). On September 28, 2021, the Court's mailing to Plaintiff was returned to the Court as undeliverable. (Doc. 21.) The returned mail indicated that Plaintiff is no longer in custody. (Id.)
On December 16, 2021, the Court issued an Order inter alia directing Plaintiff to file a notice of change of address with the Court on or before December 30, 2021. (Doc. 24 at 3.) The Court warned that “[f]ailure to comply with this Order may result in Plaintiff's action being dismissed pursuant to Fed.R.Civ.P. 41(b).” (Id.) To date, Plaintiff has not filed a notice of change of address.
II. Discussion.
Rule 83.3(d) of the Local Rules of Civil Procedure requires Plaintiff to file a notice of change of address seven days after the effective date of the change. LRCiv. 83.3(d). To date, Plaintiff has not notified the Court of his current address.
Plaintiff has the general duty to prosecute this case. Fid. Philadelphia 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 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) (per curiam). If the Court were to order Plaintiff to show cause why dismissal was not warranted, the Order “would only find itself taking a round trip through the United States mail.” Id.
It is well established that under Rule 41(b) of the Federal Rules of Civil Procedure, a district court has authority to dismiss a plaintiff's action because of his failure to prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. Wabash Railroad Co., 370 U.S. 626, 629-30 (1962) (a district court has the inherent power to dismiss a case sua sponte for failure to prosecute); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (1992) (holding that a district court may dismiss an action for failure to comply with any order of the court); see also Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (a district court may dismiss an action for failure to comply with a local rule).
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)). “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. 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.
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 dismissal order states otherwise.” In the instant case, the Court finds that a dismissal with prejudice would be unnecessarily harsh. The Court will therefore recommend that Plaintiff's TAC and this action be dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
Accordingly, IT IS RECOMMENDED that Plaintiffs Third Amended Complaint (doc. 14) and this action are dismissed without prejudice.
IT IS FURTHER RECOMMENDED that Defendants' Motion for Extension of Time for Scheduling Order Deadlines (doc. 27) is denied as moot.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Civ. P. 72.