Feavel v. Arpaio

Filing 8

REPORT AND RECOMMENDATION re 1 Complaint: Recommending that this action be dismissed without prejudice. Signed by Magistrate Judge Mark E Aspey on 4/13/09. (LSP)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA PATRICK FEAVEL, ) ) Plaintiff, ) ) CIV 09-00060 PHX SRB MEA v. ) ) REPORT AND RECOMMENDATION JOSEPH M. ARPAIO, ) FOR DISMISSAL WITHOUT PREJUDICE ) Defendant. ) _______________________________) TO THE HONORABLE SUSAN R. BOLTON: Plaintiff filed his complaint on January 8, 2009, while incarcerated at the Lower Buckeye Jail. On February 10, 2009, the Court ordered Plaintiff to complete and return a service packet for Defendant to the Court by March 2, 2009. That order warned Plaintiff that his failure to timely comply with the provisions of the order would result in the dismissal of the complaint pursuant to Rule 41(b), Federal Rules of Civil Procedure. the Court. The civil docket in this matter indicates that The docket indicates that the Court's order of Plaintiff has failed to return a service packet for Defendant to February 10, 2009, was returned to the Court on February 13, 2009, as undeliverable.

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Rule 3.4, Local Rules of Civil Procedure for the United States District Court for the District of Arizona requires prisoner-litigants to comply with instructions attached to the Court-approved complaint form for use in section 1983 actions. address. Those instructions provide: "You must immediately notify the clerk ... in writing of any change in your mailing Failure to notify the court of any change in your Plaintiff has a general duty to prosecute this case. Fidelity Phila. 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 current address and to comply with the Court's orders in a timely fashion. This Court does not have an "A party, not the affirmative obligation to locate Plaintiff. of any changes in his mailing address." 1439, 1441 (9th Cir. 1988). Court informed of his new prosecute. Rule 41(b) of the Federal Rules of Civil Procedure provides that "[f]or failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an 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
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mailing address may result in the dismissal of your case."

district court, bears the burden of keeping the court apprised Carey v. King, 856 F.2d constitutes failure to Plaintiff's failure to keep the address

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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. 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." 1990). Here, the first, second, and third factors favor dismissal of this case. foreseeable future. against dismissal. consider Without whether a Plaintiff's Plaintiff's failure to keep the Court informed of his address prevents the case from proceeding in the The fourth factor, as always, weighs The fifth factor requires the Court to less drastic alternative is available. certain current address, however, Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir. Id. at

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
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tour through the United States mail." is realistically available. Rule

856 F.2d at 1441. 41(b) provides that a

The Court finds that only one less drastic sanction 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 Court finds that a dismissal with prejudice would be unnecessarily harsh. The Complaint and this action will therefore be dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. IT IS THEREFORE RECOMMENDED that, pursuant to Rule 41(b), Federal Rules of Civil Procedure, this action be dismissed without prejudice. DATED this 13th day of April, 2009.

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