Opinion
CV-22-00877-PHX-SPL (ESW)
05-22-2023
Andrew Tyraye Moering, Plaintiff, v. Unknown Party, et al., Defendants.
REPORT AND RECOMMENDATION
Honorable Eileen S. Willett, United States Magistrate Judge
TO THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT COURT JUDGE:
On September 22, 2022, pro se prisoner Andrew Tyraye Moering (“Plaintiff”) filed a civil rights First Amended Complaint pursuant to 42 U.S.C. § 1983. The Court screened Plaintiff's First Amended Complaint pursuant to 28 U.S.C. § 1915A(a) and ordered Defendants Doe I and II, Gonzalez, and Medley to answer the Eighth Amendment threat to safety claim raised in Count II (Doc. 11 at 9). The Court ordered Plaintiff to file a Notice of Substitution, substituting Defendants Doe 1 and 2's actual names within 120 days of September 2, 2022 (Id.). The Court further ordered Plaintiff to (i) return completed service packets for Defendants Gonzalez and Medley within 21 days of September 2, 2022, and (ii) obtain a waiver of service or complete service of the Summons and First Amended Complaint on Defendants Gonzalez and Medley within 90 days of the filing of the First Amended Complaint or 60 days of September 2, 2022, whichever was later (Id. at 10). The Court's Order and service packets were mailed to Plaintiff at his address of record. Plaintiff is deemed to have received the documents as his mail was not returned to the Court. Plaintiff failed to file a Notice of Substitution as to Defendants Doe 1 and 2. Plaintiff also failed to return completed service packets for Defendants Gonzalez and Medley. Service has not been completed as to the Defendants.
On January 5, 2023, the Court ordered that by January 20, 2023, Plaintiff shall either (i) return the completed service packets as previously ordered or (ii) show cause why this case should not be dismissed for failure to prosecute (Doc. 14). The Order to show cause was mailed to Plaintiff at his address of record and was not returned. As of the date of filing this Report and Recommendation, Plaintiff has failed to respond to the Court's Order to show cause, and the time to do so has passed. Plaintiff has abandoned his case.
I. DISCUSSION
Plaintiffs have the general duty to prosecute their case. See Fidelity Phila. Trust Co. v. Pioche Mines Consol., Inc., 587 F.2d 27, 29 (9th Cir. 1978) (“It is a well established rule that the duty to move a case is on the plaintiff and not on the defendant or the court.”). Federal Rule of Civil Procedure 41(b) provides that “if the plaintiff fails to prosecute or to comply with these rules or a court order, 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, even though the language of Federal Rule of Civil Procedure 41(b) appears to require a motion from a party. Moreover, in appropriate circumstances, the Court may dismiss a pleading for failure to prosecute even without notice or hearing. Link, 370 U.S. 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 file a Notice of Substitution and return service packets 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. The undersigned finds that only one less drastic sanction is realistically available. Rule 41(b) provides that a dismissal for failure to prosecute operates as adjudication upon the merits “[u]nless the dismissal order states otherwise.” The Court may dismiss the case without prejudice.
Plaintiff has failed to abide by the orders of the Court. He has abandoned his case. The undersigned will recommend dismissal of Plaintiff's First Amended Complaint (Doc.13) without prejudice.
II. CONCLUSION
For the reasons set forth herein, IT IS RECOMMENDED that the First Amended Complaint (Doc. 13) be dismissed without prejudice for Plaintiff's failure to comply with the Court's Orders and to prosecute 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 Fed. R. App. P. 4(a) (1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen 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 fourteen 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.