Opinion
CV-21-00856-PHX-MTL (JZB)
03-07-2022
Manuel Jay Kirkwood, Plaintiff, v. Paul Penzone, et al., Defendants.
HONORABLE MICHAEL T. LIBURDI, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
Honorable John Z. Boyle United States Magistrate Judge
Plaintiff Manuel Jay Kirkwood, who filed this action pro se while incarcerated, has been released, and has failed to file a change of address in compliance with LRCiv 83.3(d) and the Court's May 26, 2021 Screening Order (doc. 5). Accordingly, pursuant to Fed.R.Civ.P. 41(b), the Court will recommend that Plaintiff's Complaint and this action be dismissed for failure to comply with the Court's rules and orders.
I. Background.
On May 13, 2021, Plaintiff 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). On May 26, 2021, the Court issued an order screening Plaintiff's Complaint. (Doc. 5.) Therein, the Court directed inter alia Defendant Penzone to answer the claims against him in Plaintiff's Complaint. (Id.) The Court also issued a warning to Plaintiff, stating:
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.(Id. at 11.)
On August 9, 2021, Defendant Penzone answered Plaintiff's Complaint. (Doc. 8.) That same day, the Court issued a Scheduling Order setting a discovery deadline of January 6, 2022, and a dispositive motion deadline of April 6, 2022. (Doc. 10.) On September 3, 2021, Plaintiff filed a Motion to Appoint Counsel (doc. 11), which the Court denied (doc. 12).
On February 14, 2022, Defendant Penzone filed a Motion to Dismiss for Lack of Prosecution. (Doc. 16.) Therein, Defendant Penzone asserts that:
On January 6, 2022, Defendant served requests for production, requests for admission, and interrogatories upon Plaintiff. (Dkt. 15.) On January 27, 2022, the envelope containing Defendant's requests was returned to Defense counsel, with a stamp stating: “January 11[, ] 2022. Return to Sender. No. Longer in Custody.” (See Image of Envelope Returned to Defendant, attached hereto as Exhibit A.) Defendant confirmed Plaintiff is no longer in custody by using the “Inmate Information” tool on MCSO's website and searching for Plaintiff's custody status. (See https://www.mcso.org/custody -bureau-information/inmate-information) (last accessed February 3, 2022.) No. data concerning Plaintiff was found. It appears Plaintiff was released on December 8, 2021. (See Sentencing Order in CR2021-000151-001 DT, attached hereto as Exhibit B.)(Id. at 1-2.) On February 15, 2022, the Court issued a warning order to Plaintiff, directing him to respond to Defendant's Motion to Dismiss on or before February 25, 2022. (Doc. 18.) A copy of the Court's February 15, 2022 warning order was mailed to Plaintiff at his last known address. On February 28, 2022, the Court's mailing was returned undelivered with the reason for return listed as “Return to Sender, No. Longer in Custody.” (Doc. 19.)
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). As early as December 8, 2021, and no later than February 28, 2022, Plaintiff was released from custody. (See Docs. 16, 19.) 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. Therefore, the Court will recommend that the Complaint and this action be dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
IT IS RECOMMENDED that Plaintiff's Complaint (doc. 1) and this action are dismissed without prejudice.
IT IS FURTHER RECOMMENDED that Defendant's Motion to Dismiss (doc. 16) and Motion for Stay of Discovery Deadlines (doc. 17) are 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 Rule 4(a)(1), Federal Rules of Appellate Procedure, 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 Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to timely file 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 timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge's Report and Recommendation. See Fed. R. Civ. P. 72.