Miller v. Aguillar et al

Filing 9

ORDER - IT IS ORDERED that this action is dismissed without prejudice for failure to comply with Court orders pursuant to Rule 41(b). Signed by Senior Judge Robert C Broomfield on 12/20/12. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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William Earl Miller,

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Plaintiff,

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vs.

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David Aguillar, et al.,
Defendants.

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No. CV-12-2321-PHX-RCB (BSB)
ORDER

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This matter is before the Court on its own review. For the reasons set forth below, the

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Court will dismiss this action without prejudice for failure to comply with Court orders pursuant

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to Federal Rule of Civil Procedure 41(b).

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I. Background

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Plaintiff, proceeding pro se, commenced this action pursuant to 42 U.S.C. § 1983 on

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October 30, 2012. (Doc. 1.) On November 21, 2012, the Court granted Plaintiff in forma

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pauperis status. (Doc. 5.) The Court also directed Plaintiff to notify the Court of any change

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in his address in accordance with Local Rule of Civil Procedure Rule 83.3(d) and warned him

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that failure to do so could result in dismissal of this action. (Id. at 4.) Local Rule 83.3(d)

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provides that an unrepresented party who is incarcerated must notify the Court in writing of any

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change in address “within seven (7) days after the effective date of the change.” Id. On

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November 29 and 30, 2012, the Court received returned mail addressed to Plaintiff marked

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“undeliverable” noting that Plaintiff is not in custody. (Docs. 7 and 8.) Plaintiff has not notified

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the Court of his current address.

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II. Discussion

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In view of Plaintiff’s failure to provide notice of his current address, the Court will

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consider whether to dismiss this case. Plaintiff has the general duty to prosecute this case.

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Fidelity Philadelphia Trust Co. v. Pioche Mines Consol., Inc., 587 F.2d 27, 29 (9th Cir. 1978).

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A plaintiff who has filed a pro se action must keep the Court apprised of his current address and

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comply with the Court’s orders in a timely fashion. This Court does not have an affirmative

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obligation to locate Plaintiff. “A party, not the district court, bears the burden of keeping the

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court apprised of any changes in his mailing address.” Carey v. King, 856 F.2d 1439, 1441 (9th

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Cir. 1988). Plaintiff’s failure to inform the Court of his current address constitutes failure to

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prosecute his case and a failure to comply with the Court’s order.

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Rule 41(b) of the Federal Rules of Civil Procedure provides that “[i]f the plaintiff fails

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to prosecute or to comply with these rules or a court order, a defendant may move to dismiss

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the action or any claim against it.” Fed. R. Civ. P. 41(b). The Supreme Court recognized that

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a federal district court has the inherent power to dismiss a case sua sponte for failure to

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prosecute, even though the language of Rule 41(b) appears to require a motion from a party.

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See Link v. Wabash R.R. Co., 370 U.S. 626, 629-31 (1962). Moreover, in appropriate

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circumstances, the Court may dismiss an action for failure to prosecute even without notice or

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hearing. Id. at 633.

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In determining whether Plaintiff’s failure to prosecute warrants dismissal of the case, the

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Court must weigh the following five factors: “‘(1) the public’s interest in expeditious resolution

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of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the

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defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the

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availability of less drastic sanctions.’” Carey, 856 F.2d at 1440 (quoting Henderson v. Duncan,

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779 F.2d 1421, 1423 (9th Cir. 1986)). “The first two of these factors favor the imposition of

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sanctions in most cases, while the fourth factor cuts against a default or dismissal sanction.

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Thus the key factors are prejudice and availability of lesser sanctions.” Wanderer v. Johnston,

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910 F.2d 652, 656 (9th 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 keep the Court informed of his address prevents the case from proceeding in the foreseeable

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future. The fourth factor, as always, weighs against dismissal. The fifth factor requires the

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Court to consider whether a less drastic alternative is available. Without Plaintiff’s current

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address, however, certain alternatives are futile. Here, as in Carey, “[a]n order to show cause

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why dismissal is not warranted or an order imposing sanctions would only find itself taking a

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round trip tour through the United States mail.” Carey, 856 F.2d at 1441.

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The Court finds that one less drastic sanction is available. Rule 41(b) provides that a

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dismissal for failure to prosecute operates as an adjudication upon the merits “[u]nless the

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dismissal order states otherwise.” Fed. R. Civ. P. 41(b). In the instant case, the Court finds that

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dismissal with prejudice would be unnecessarily harsh. The Court, therefore, will dismiss this

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action without prejudice pursuant to Rule 41(b). See Isley v. Schriro, 2007 WL 3287587, *2

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(D. Ariz. Nov. 5, 2007) (dismissing § 2254 petition without prejudice based on petitioner’s

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failure to notify court of his current address).

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Accordingly,

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IT IS ORDERED that this action is dismissed without prejudice for failure to comply

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with Court orders pursuant to Rule 41(b).
DATED this 20th day of December, 2012.

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