Riess v. Cordero et al
Filing
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ORDER Defendants' 157 Motion to Dismiss for Lack of Prosecution is granted. Defendants' 158 Motion for a Ruling is granted. This action is dismissed without prejudice, and the Clerk of Court must enter judgment accordingly. Signed by Judge Robert C Broomfield on 11/16/11. (ESL)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Richard Steven Riess,
Plaintiff,
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vs.
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Karl Stansel, et al.,
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Defendants.
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No. CV 09-1760-PHX-RCB
ORDER
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In this civil rights action brought by a former Immigration and Customs Enforcement
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(ICE) detainee held at the Eloy Detention Center (EDC), the remaining Defendants—Karl
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Stansel and Niles Behrens—move to dismiss for lack of prosecution. (Doc. 157.) The Court
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will grant the Motion to Dismiss for Failure to Prosecute and the Motion for Ruling. (Doc.
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158.)
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I.
Background and Motion to Dismiss for Failure to Prosecute
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On May 24, 2011, the Court issued an Order denying in part Defendants’ Motion for
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Summary Judgment; the Court held that Plaintiff’s remaining claims are the free exercise and
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equal protection claims for damages and injunctive relief regarding denial of a kosher diet,
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denial of access to the chapel, and denial of a Torah and Siddur. (Doc. 127.) The Court
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directed the parties to file their Proposed Joint Pretrial Order. (Doc. 139.) Defendants filed
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their Order on August 5, 2011. (Doc. 146.) Defendants assert that on August 31, Plaintiff
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was transferred into ICE’s custody and deported by ICE to Canada. (Doc. 157 at 1.) On
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September 9, 2011, the Court granted Plaintiff a 14-day extension of time to file his Proposed
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Joint Pretrial Order. (Doc. 155.) On September 15, mail from the Court was returned as
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undeliverable, noting that Plaintiff was no longer in custody. (Doc. 156.) Defendants filed
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their Motion to Dismiss on October 7, 2011. (Doc. 157.)
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Defendants assert that Plaintiff has failed to provide a forwarding address as required
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by the Court’s Order of April 9, 2010 and Local Rule of Civil Procedure 83.3(d) and failed
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to provide his portions of the Proposed Joint Pretrial Order. (Doc. 157 at 2; ref. Doc. 25.)
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They argue that he has unreasonably delayed this matter and that they should not be required
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to continue to prepare for trial because Plaintiff has abandoned his case and acted in bad faith.
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They ask that the case be dismissed with prejudice. (Id.)
Plaintiff filed no response and no Notice of Change of Address.
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II.
Failure to Prosecute
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Plaintiff has the general duty to prosecute this case. See Fidelity Phila. Trust Co. v.
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Pioche Mines Consol., Inc., 587 F.2d 27, 29 (9th Cir. 1978). In this regard, it is the duty of
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a plaintiff who has filed a pro se action to keep the Court apprised of his or her current
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address and to comply with the Court’s orders in a timely fashion. The Court does not have
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an affirmative obligation to locate Plaintiff. “A party, not the district court, bears the burden
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of keeping the court apprised of any changes in his mailing address.” Carey v. King, 856 F.2d
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1439, 1441 (9th Cir. 1988); see also LRCiv 83.3(d). Plaintiff’s failure to keep the Court
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informed of his new address constitutes a failure to prosecute.
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Rule 41(b) of the Federal Rules of Civil Procedure provides that “[f]or failure of the
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plaintiff to prosecute or to comply with these rules or any order of court, a defendant may
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move for dismissal of an action.” Rule 7.2 (i) of the Local Rules of Civil Procedure provides
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that if an unrepresented party or counsel does not serve and file a required answering
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memorandum, such non-compliance with the Rule “may be deemed a consent to the denial
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or granting of the motion and the Court may dispose of the motion summarily.” See also
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Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (providing that the district court did not
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abuse its discretion in summarily granting defendants’ motion to dismiss pursuant to local rule
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where pro se plaintiff had time to respond to the motion but failed to do so). As noted,
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Plaintiff has filed no response to the motion to dismiss.
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In determining whether Plaintiff’s failure to prosecute warrants dismissal of the case,
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the Court must weigh the following five factors: “(1) the public’s interest in expeditious
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resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to
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the defendants; (4) the public policy favoring disposition of cases on their merits and (5) the
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availability of less drastic sanctions.” Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.
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1986). “The first two of these factors favor the imposition of sanctions in most cases, while
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the fourth factor cuts against a default or dismissal sanction. Thus the key factors are
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prejudice and availability of lesser sanctions.” Wanderer v. Johnston, 910 F.2d 652, 656 (9th
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Cir. 1990).
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Here, the first, second, and third factors favor dismissal of this case. Plaintiff’s failure
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to cooperate with pretrial procedures impedes the expeditious resolution of this case and
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prejudices Defendants’ preparation for trial, as does his failure to keep the Court and
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Defendants apprised of his address. The fourth factor, as always, weighs against dismissal.
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The fifth factor requires the Court to consider whether a less drastic alternative to dismissal
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is available. But the Court need not exhaust every sanction short of dismissal before finally
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dismissing a case. See Henderson, 779 F.2d at 1424. For example, if the Court were to order
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Plaintiff to show cause why dismissal were not warranted, the Order “would only find itself
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taking a round trip tour through the United States mail.” Carey, 856 F.2d at 1441.
Because Plaintiff has failed to prosecute this action, the Court will dismiss his action
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without prejudice.
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IT IS ORDERED:
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(1)
Defendants’ Motion to Dismiss for Lack of Prosecution (Doc. 157) is granted.
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(2)
Defendants’ Motion for a Ruling (Doc. 158) is granted.
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(3)
This action is dismissed without prejudice, and the Clerk of Court must enter
judgment accordingly.
DATED this 16th day of November, 2011.
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