Summary
considering the factors where the court's mail was returned as undeliverable, prior to dismissing the action for failure to prosecute
Summary of this case from Galloway v. PfiefferOpinion
CV-24-01313-PHX-JAT (CDB)
07-24-2024
Ronisha Unique Johnson, Plaintiff, v. Russell Skinner, et al., Defendants.
ORDER
James A. Teilborg, Senior United States District Judge
On June 3, 2024, Plaintiff Ronisha Unique Johnson, who was confined in a Maricopa County Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2). The Court will dismiss this action and deny as moot the Application to Proceed.
On June 3, 2024, the Clerk of Court mailed a copy of the Notice of Assignment to Plaintiff at the jail, but the Notice of Assignment was returned to the Court as undeliverable because Plaintiff is no longer in custody. Plaintiff has not filed a Notice of Change of Address, or in any way notified the Court of her whereabouts.
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 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 apprised of 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 her mailing address.” Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988). Plaintiff's failure to keep the Court informed of her 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) 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 or petition 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)). “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. Johnston, 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 her 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. 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 upon the merits “[u]nless the court in its order for dismissal otherwise specifies.” In the instant case, 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) of the Federal Rules of Civil Procedure.
IT IS ORDERED:
(1) Plaintiff's 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.
(2) Plaintiff's Application to Proceed In Forma Pauperis (Doc. 2) is denied as moot.
(3) The docket shall reflect that the Court, pursuant to 28 U.S.C. § 1915(a)(3), has considered whether an appeal of this decision would be taken in good faith and finds Plaintiff may appeal in forma pauperis.