Opinion
CV-21-00531-PHX-JJT (JZB)
01-04-2023
Christopher Neil Loeffler, Plaintiff, v. David Shinn, et al., Defendants.
REPORT & RECOMMENDATION
Honorable John Z. Boyle United States Magistrate Judge
TO THE HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE: This matter is before the Court on its own review. Because Plaintiff has failed to comply with this Court's orders to return service packets or otherwise comply to the Court's orders, including an order to show cause why this action should not be dismissed, the Court will recommend that Plaintiff's Second Amended Complaint be dismissed without prejudice pursuant to Federal Rule of Civil Procedure 41(b).
I. Background.
On March 15, 2021, Plaintiff Christopher Neil Loeffler, who was confined in the Arizona State Prison Complex-Yuma, La Paz Unit, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983. (Doc. 2.) On April 29, 2021, Plaintiff filed an Application to Proceed In Forma Pauperis. (Doc. 4.) On May 6, 2021, the Court granted the Application to Proceed and dismissed the Complaint because it did not contain allegations pertaining only to Plaintiff's claims. (See Doc. 7.) The Court gave Plaintiff 30 days to file an amended complaint that cured the deficiencies identified in the Order.
On May 27, 2021, Plaintiff filed his First Amended Complaint (FAC). (Doc. 9). On July 29, 2021, the Court screened the FAC, ordered Defendant Town to answer the claims against him therein, and directed Plaintiff to return a completed service packet for Defendant Town within 21 days. (Doc. 12.) On August 5, 2021, Plaintiff filed a Notice of Change of Address. (Doc. 13.)
On August 4, 2022, the Court issued an order that “on or before August 26, 2022, Plaintiff must either return to the Clerk a completed service packet for Defendant Town (see doc. 12) or show cause why this matter should not be dismissed for failure to comply with the Court's Order, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.” (Doc. 15.) Plaintiff did not respond.
II. Discussion.
Plaintiff has the general duty to prosecute this case. See Fidelity Philadelphia Trust Co. v. Pioche Mines Consolidated, Inc., 587 F.2d 27, 29 (9th Cir. 1978). Rule 41(b) of the Federal Rules of Civil Procedure provides that “[i]f the plaintiff fails to comply with these rules or any order of court, a defendant may move to dismiss the action or any claim against it.” 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. Moreover, in appropriate circumstances, the Court may dismiss a complaint for failure to prosecute even without notice or hearing. See 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 return service packets as ordered by the Court prevents the case from proceeding against Defendant Town 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 has already ordered Plaintiff to show cause why this matter should not be dismissed (doc. 15), but Plaintiff has not responded.
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 dismissal of this action without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
Accordingly, IT IS RECOMMENDED that Plaintiff's Second Amended 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).