Moore v Maricopa County Sheriff's Office

Filing 21

ORDER TO SHOW CAUSE pursuant to the Mandate of the Ninth Circuit Court of Appeals 19 , the Clerk of Court must reopen this case. Within 20 days from the date this Order is filed, Plaintiff must show cause why this case should not be dismissed withou t prejudice. If Plaintiff fails to comply, the Clerk of Court must enter a judgment of dismissal. The Clerk of Court must mail a copy of this Order to Plaintiff at the following address (see attached pdf for complete information). Signed by Judge G Murray Snow on 10/28/11. (TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Larry Lee Moore,
Plaintiff,

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vs.

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Maricopa County Sheriff’s Office,
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Defendant.

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No. CV 10-1495-PHX-GMS (JRI)
ORDER TO SHOW CAUSE

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On May 25, 2010, Plaintiff Larry Lee Moore filed a pro se Complaint (Doc. 1) in the

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United States District Court for the District of Columbia. Plaintiff also filed an “Application

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To Proceed Without Payment Of Fees And Affidavit” (Doc. 2).

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By Order filed May 25, 2010 (Doc. 4), the District of Columbia Court gave Plaintiff

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30 days to file a certified copy of his trust fund account statement for the six-month period

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immediately preceding the filing of the Complaint. On June 11, 2010, Petitioner filed a

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“Certified Statement of Account” (Doc. 5) from the Central Office of the Arizona

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Department of Corrections.

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Then, by Order filed June 23, 2010 (Doc. 7), the District of Columbia Court

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transferred the action to this Court. By Order filed July 21, 2010 (Doc. 11), the Court denied

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Plaintiff’s “Application To Proceed Without Payment Of Fees And Affidavit” (Doc. 2) and

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dismissed this action pursuant to 28 U.S.C. § 1915(g), without prejudice to Plaintiff filing

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a complaint in a new case accompanied by the full $350.00 filing fee. Judgment was entered

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on July 21, 2010 (Doc. 12).

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On August 9, 2010, Plaintiff filed a Notice of Appeal (Doc. 13) to the Ninth Circuit

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Court of Appeals. On October 5, 2011, the Mandate of the Ninth Circuit Court of Appeals

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reversing and remanding this action was filed (Doc. 19). On October 6, 2011, the Clerk of

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Court mailed a copy of the Mandate to Plaintiff at his last known address at the Arizona State

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Prison Complex in Safford, Arizona.

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I.

Returned Mail

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On October 12, 2011, the envelope containing copy of the Mandate was returned to

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the Clerk of the Court (Doc. 20) with the notations “Return To Sender,” “Returned To

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Sender,” “Attempted - Not Known,” and “Inactive.” Since then, Plaintiff has failed to file

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a Notice of Change of Address, or to in any way notify the Court of his whereabouts.

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Accordingly, the Clerk of the Court has been unable to remail the copy of the Mandate to

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Plaintiff.

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Rule 3.4(a) of the Local Rules of Civil Procedure requires that an incarcerated litigant

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comply with the instructions attached to the court-approved Complaint form. Those

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instructions state: “You must immediately notify the Court and the defendants in writing of

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any change in your mailing address. Failure to notify the Court of any change in your

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mailing address may result in the dismissal of your case.”

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Also, in its “Notice Of Assignment (Doc. 9) filed on July 16, 2010, the Court warned

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Plaintiff that “[f]ailure to comply with the following rules will result in your document being

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STRUCK and/or your case being DISMISSED.” One of the rules listed was that “[y]ou

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must file a Notice of Change of Address if your address changes.”

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II.

Failure to Prosecute

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v. Pioche Mines Consolidated, Inc., 587 F.2d 27, 29 (9th Cir. 1978). In this regard, it is the

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duty of a plaintiff who has filed a pro se action to keep the Court apprised of his or her

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Plaintiff has the general duty to prosecute this case. Fidelity Philadelphia Trust Co.

current address and to comply with the Court’s orders in a timely fashion. This Court does
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not have an affirmative obligation to locate Plaintiff. “A party, not the district court, bears

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the burden of keeping the court apprised of any changes in his mailing address.” Carey v.

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King, 856 F.2d 1439, 1441 (9th Cir. 1988). Plaintiff’s failure to keep the Court informed of

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his new address constitutes 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.” In Link v. Wabash Railroad Co., 370 U.S. 626, 629-31

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(1962), the Supreme Court recognized that a federal district court has the inherent power to

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dismiss a case sua sponte for failure to prosecute, even though the language of Rule 41(b)

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of the Federal Rules of Civil Procedure appears to require a motion from a party. Moreover,

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in appropriate circumstances, the Court may dismiss a complaint for failure to prosecute even

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without notice or hearing. Id. at 633.

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III.

Order to Show Cause

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Because Plaintiff has failed to keep the Court informed of his new address, Plaintiff

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will be given 20 days from the filing date of this Order to show cause, in writing, why this

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action should not be dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules

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of Civil Procedure for failure to prosecute.

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A search of the Arizona Department of Corrections (ADOC) website has revealed that

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“Larry Moore,” Inmate No. 246997, was released from the custody of the ADOC on

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September 6, 2011, and is currently listed as “Inactive.” Also, a search of the docket of the

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Ninth Circuit Court of Appeals has revealed a private address for Plaintiff in Phoenix,

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Arizona. Accordingly, the Court will direct the Clerk of Court to mail a copy of this Order

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to Plaintiff at this Phoenix address because it would be futile to mail a copy of this Order to

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the last known address of Plaintiff in the Arizona State Prison Complex in Safford, Arizona.

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See Carey, 856 F.2d at 1441 (mailing “[a]n order to show cause why dismissal is not

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warranted” to last known address “would only find itself taking a round trip tour through the

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United States mail”).

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In the meantime, the Clerk of Court will be directed to reopen this case pursuant to
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the Mandate of the Ninth Circuit Court of Appeals (Doc. 19).

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IV.

Warnings

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A.

Address Changes

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Plaintiff must file and serve a notice of a change of address in accordance with Rule

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83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other

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relief with a notice of change of address. Failure to comply may result in dismissal of this

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action.

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B.

Copies

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Plaintiff must submit an additional copy of every filing for use by the Court. See

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LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice

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to Plaintiff.

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C.

Possible Dismissal

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If Plaintiff fails to timely comply with every provision of this Order, including these

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warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet,

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963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to

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comply with any order of the Court).

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IT IS ORDERED:

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(1)

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Pursuant to the Mandate of the Ninth Circuit Court of Appeals (Doc. 19), the

Clerk of Court must reopen this case.
(2)

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Within 20 days from the date this Order is filed, Plaintiff must show cause,

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in writing, why this case should not be dismissed without prejudice pursuant to Rule 41(b)

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of the Federal Rules of Civil Procedure for failure to prosecute.
(3)

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If Plaintiff fails to file a response to this Order to show cause within 20 days

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action.

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//

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of the filing date of this Order, the Clerk of Court must enter a judgment of dismissal of this

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(4)

The Clerk of Court must mail a copy of this Order to Plaintiff at the following

address:
Larry Lee Moore
P.O. Box 2601
Phoenix, AZ 85002
DATED this 28th day of October, 2011.

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