Opinion
CV-23-2069-PHX-SRB (JFM)
06-11-2024
Lester Jose Salazar, Petitioner v. B. Birkholz, et al., Respondents.
REPORT & RECOMMENDATION
James F. Metcalf United States Magistrate Judge
A. REPORT AND RECOMMENDATION
This matter is before the undersigned magistrate judge on referral for a Report and Recommendation on Petitioner's Petition for Writ of Habeas Corpus. Because the appropriate resolution of this matter is dispositive of claims or defenses, the undersigned proceeds by way of a Report & Recommendation to the referring district judge, pursuant to 28 U.S.C. § 636(b)(1)(B).
B. BACKGROUND
On October 2, 2024, Petition filed his Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. 1), while confined in the Federal Correctional Institution in Phoenix, Arizona. An Amended Petition (Doc. 7) was filed December 11, 2023 asserting that prison officials were refusing to award Petitioner certain time credits under the First Step Act. Service and a response was ordered on April 11, 2024. (Order, Doc. 8.) Service was completed and on April 29, 2024 Respondent filed an Answer (Doc. 13)
On May 2, 2024, mail from the Clerk of the Court to Petitioner was returned undeliverable (Doc. 16). Indeed, a review of the Bureau of Prisons Inmate Locator website indicates Petitioner has been released to Residential Reentry Management, with no indication of his location beyond the Phoenix RRM Center offices. See https://www.bop.gOv/inmateloc//, searching for BOP Register No. 26307-081, last accessed 6/10/24. Respondents' Answer reflects this “prerelease” custody, and a projected full release date of October 23, 2024. (Answer, Doc. 13 at 2 and Exh. A, Ruelas Declaration at 4, ¶ 10.)
In the Notice of Assignment issued October 2., 2023 (Doc. 3), Petitioner was warned that dismissal could result from failure to file a notice of change of address. Similar warnings were in the Orders filed October 18, 2023 (Doc. 4, at 3) and April 11, 2024 (Doc. 8), although the latter was in the mail being returned. See LRCiv 83.3(d) (mandating notice of change of address).
Petitioner had not filed a notice of change of address. Accordingly, Petitioner was given 14 days to file either (1) a response to the order showing cause as to why this action should not be dismissed for failure to prosecute; or (2) a notice of change of address with the court, reflecting Petitioner's current address. (Order 5/6/24, Doc. 17.) Petitioner's copy of that Order was returned undeliverable on May 20, 2024 (Doc. 19). Petitioner's time to respond to the Order expired on May 20, 2024. Petitioner did not respond.
On May 24, 2024, the Court noted a possible alternative address for Petitioner through Bureau of Prisons' Residential Reentry Office, to which it appears Petitioner has been assigned. Accordingly, the Court directed delivery of the prior orders (Docs. 14, 17) to Petitioner at that address and a response by June 5, 2024. The copies sent to Petitioner at this address have not been returned, and Petitioner still has not responded.
C. DISCUSSION
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 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). Plaintiff's failure to keep the Court informed of his new address constitutes failure to prosecute.
Rule 41(b) of the Federal Rules of Civil Procedure provides that "[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the 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 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. 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. Here, as in Carey, "[a]n order to show cause why dismissal is not warranted or an order imposing sanctions would only find itself taking a round trip tour through the United States mail." 856 F.2d at 1441.
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 an adjudication upon the merits "[u]nless the court in its order for dismissal otherwise specifies." In the instant case, the undersigned finds that a dismissal with prejudice would be unnecessarily harsh. The undersigned will recommend the Complaint and this action be dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
D. EFFECT OF RECOMMENDATION
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.
However, pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”
E. RECOMMENDATIONS
IT IS THEREFORE RECOMMENDED:
(A) The reference of this case to the magistrate judge be WITHDRAWN.
(B) Pursuant to Rule 41(b) of the Federal Rules of Civil Procedure this action be DISMISSED WITHOUT PREJUDICE.