Opinion
CV-20-01742-PHX-DWL (JZB)
04-20-2022
Anthony Lamar Scroggins, Plaintiff, v. Unknown Fuller-Espinoza, et al., Defendants.
THE HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE
REPORT & RECOMMENDATION
Honorable John Z. Boyle United States Magistrate Judge
Plaintiff Anthony Lamar Scroggins, who filed this action pro se while incarcerated, has been released (doc. 26), and has failed to file a change of address in compliance with LRCiv 83.3(d) and the Court's October 19, 2020 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 September 4, 2020, 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 October 19, 2020, the Court issued an order screening Plaintiff's Complaint. (Doc. 5.) Therein, the Court directed inter alia Defendant Fuller-Espinoza to answer the claims against him in Plaintiff's Complaint. (Id.) The Court also issued a warning to Plaintiff, stating:
If Plaintiff's address changes, Plaintiff must file 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 4-5.)
On January 25, 2021, Defendant Fuller-Espinoza answered the Complaint. (doc. 8.) On February 1, 2021, the Court entered a Scheduling Order setting a discovery deadline of June 28, 2021, and a dispositive motion deadline of September 27, 2021. (Doc. 10.) On April 19, 2021, Defendant filed a Motion to Stay this Action (doc. 16), which the Court granted (doc. 17.)
On February 11, 2022, Defendants filed a Motion to Dismiss this action for failure to state a claim and for failure to comply with court orders. (Doc. 22.) Specifically, Defendant argues:
On October 25, 2021, Scroggins pleaded guilty to resisting arrest and aggravated assault for his actions during the arrest, and he was sentenced to 2.5 years imprisonment. In Arizona, one element of the crime of resisting arrest is that the arrest was lawful, and this lawfulness includes the use of reasonable force by the arresting officer. Therefore, Scroggins' guilty plea conceded the reasonableness of the force at issue here, and his claim for excessive force would render his conviction and sentence invalid. Scroggins' claim is barred by Heck, and the Court should dismiss the case under Fed.R.Civ.P. 12(b)(6).
Alternatively, the Court should dismiss this case because Scroggins has failed to comply with the Court's October 19, 2020 order (Doc. 5). Scroggins was transferred from Maricopa County custody to Arizona Department of Corrections custody, then released. But he has failed to file the changes of address required by the Court's order and LRCiv 83.3(d). Now that he been released from custody, he also has failed to notify the Court of his intentions regarding the filing fee and his in forma pauperis status.(Id. at 1-2.)
On February 15, 2022, the Court issued a Warning Order to Plaintiff, informing him that a Motion to Dismiss had been filed against him in this action, and directing Plaintiff to file a response to the Motion on or before March 4, 2022. (Doc. 24.) 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. 26.)
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 February 11, 2022, and no later than February 28, 2022, Plaintiff was released from custody. (See Docs. 22, 26.) 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. 22) is 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.