Nareau v. Maricopa County Estrella Jail

Filing 12

ORDER that pursuant to Rule 41(b) of the Federal Rules of Civil Procedure this action is dismissed without prejudice and the Clerk of the Court shall enter judgment accordingly. Signed by Judge David G Campbell on 04/13/11. (ESL)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Tanya Delgadillo Nareau, Plaintiff, 10 11 vs. 12 Maricopa County Estrella Jail, et al., 13 Defendants. ) ) ) ) ) ) ) ) ) ) No. CIV 10-1791-PHX-DGC (DKD) ORDER 14 15 Plaintiff, formerly an inmate at the Maricopa County Estrella Jail, filed a pro se Prisoner 16 Civil Rights Complaint pursuant to 42 U.S.C. ยง 1983 on August 20, 2010 (Doc. 1). The Court 17 issued a Notice of Assignment on that date, a copy of which was mailed to Plaintiff, in which 18 she was warned that failure to file a Notice of Change of Address could result in the case being 19 dismissed (Doc. 2). The Court issued an order for payment of the inmate filing fee on February 20 16, 2011, and ordered defendants to answer the First Amended Complaint (Doc. 10). On March 21 7, 2011, copies of the Court's February 16, 2011 Order and a service packet mailed to Plaintiff 22 at her last known address were returned as unclaimed, with a notation that Plaintiff had been 23 released (Doc. 11). Plaintiff has not filed a change of address. 24 Plaintiff has the general duty to prosecute this case. Fidelity Philadelphia Trust Co. v. 25 Pioche Mines Consolidated, Inc., 587 F.2d 27, 29 (9th Cir. 1978). In this regard, it is the duty 26 of a plaintiff who has filed a pro se action to keep the Court apprised of his or her current 27 address and to comply with the Court's orders in a timely fashion. This Court does not have an 28 affirmative obligation to locate Plaintiff. "A party, not the district court, bears the burden of 1 keeping the court apprised of any changes in his mailing address." Carey v. King, 856 F.2d 2 1439, 1441 (9th Cir. 1988). Plaintiff's failure to keep the Court informed of his new address 3 constitutes failure to prosecute. 4 Rule 41(b) of the Federal Rules of Civil Procedure provides that "[f]or failure of the 5 plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move 6 for dismissal of an action." In Link v. Wabash Railroad Co., 370 U.S. 626, 629-31 (1962), the 7 Supreme Court recognized that a federal district court has the inherent power to dismiss a case 8 sua sponte for failure to prosecute, even though the language of Rule 41(b) of the Federal Rules 9 of Civil Procedure appears to require a motion from a party. Moreover, in appropriate 10 circumstances, the Court may dismiss a complaint for failure to prosecute even without notice 11 or hearing. Id. at 633. 12 In determining whether Plaintiff's failure to prosecute warrants dismissal of the case, the 13 Court must weigh the following five factors: "(1) the public's interest in expeditious resolution 14 of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the 15 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the 16 availability of less drastic sanctions." Carey, 856 F.2d at 1440 (quoting Henderson v. Duncan, 17 779 F.2d 1421, 1423 (9th Cir. 1986)). "The first two of these factors favor the imposition of 18 sanctions in most cases, while the fourth factor cuts against a default or dismissal sanction. 19 Thus the key factors are prejudice and availability of lesser sanctions." Wanderer v. Johnson, 20 910 F.2d 652, 656 (9th Cir. 1990). 21 Here, the first, second, and third factors favor dismissal of this case. Plaintiff's failure 22 to keep the Court informed of his address prevents the case from proceeding in the foreseeable 23 future. The fourth factor, as always, weighs against dismissal. The fifth factor requires the 24 Court to consider whether a less drastic alternative is available. Without Plaintiff's current 25 address, however, certain alternatives are bound to be futile. Here, as in Carey, "[a]n order to 26 show cause why dismissal is not warranted or an order imposing sanctions would only find itself 27 taking a round trip tour through the United States mail." 856 F.2d at 1441. 28 -2- 1 The Court finds that only one less drastic sanction is realistically available. Rule 41(b) 2 provides that a dismissal for failure to prosecute operates as an adjudication upon the merits 3 "[u]nless the court in its order for dismissal otherwise specifies." In the instant case, the Court 4 finds that a dismissal with prejudice would be unnecessarily harsh. The Complaint and this 5 action will therefore be dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules 6 of Civil Procedure. 7 IT IS THEREFORE ORDERED that pursuant to Rule 41(b) of the Federal Rules of 8 Civil Procedure this action is dismissed without prejudice and the Clerk of the Court shall enter 9 judgment accordingly. 10 DATED this 13th day of April, 2011. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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