Whittier v. Arpaio

Filing 12

ORDER, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure this action is dismissed without prejudice. Signed by Judge David G Campbell on 7/23/13. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Justin Whittier,
Plaintiff,

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vs.

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Joe Arpaio, et al.,

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Defendants.

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CIV-12-2430-PHX-DGC (MHB)
ORDER

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On November 13, 2013, Plaintiff Justin Whittier, who is confined in the Maricopa
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County Lower Buckeye Jail, filed a pro se civil rights Complaint pursuant to 42 U.S.C. §
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1983. In a December 27, 2013 Order, the Court dismissed the Complaint because Plaintiff
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had failed to state a claim. The Court gave Plaintiff 30 days to file an amended complaint
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that cured the deficiencies identified in the Order.
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On January 10, 2013, Plaintiff filed his First Amended Complaint (Doc. 7). The Court
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screened the amended pleading, ordered Defendant Arpaio to answer, and dismissed the
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remaining Defendants without prejudice. Further, in the screening Order, Plaintiff was
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directed to file and serve a notice of change of address in accordance with Rule 83.3(d) of
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the Local Rules of Civil Procedure. Plaintiff was warned that if he failed to timely comply
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with the provisions set forth in the screening Order, the action would be dismissed pursuant
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to Rule 41(b) of the Federal Rules of Civil Procedure.
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On May 6, 2013, the docket reflected that mail sent from the Clerk of the Court to
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Plaintiff was returned as undeliverable indicating that Plaintiff is no longer in custody. (Doc.
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9.) Having failed to notify the Court of a new address, on May 20, 2013, the Court ordered

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that no later than “ten (10) days from the date of [its] Order, Plaintiff shall either: (1) file a

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notice of change of address, or (2) show cause why this matter should not be dismissed for

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failure to prosecute in light of his failure to file a notice of change of address.” (Doc. 10.)

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The time for responding has expired, and Plaintiff has not responded to the Order to show

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cause or, otherwise, communicated with the Court. The Court, therefore, will determine

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whether dismissal is appropriate.

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

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Co. v. Pioche Mines Consolidated, Inc., 587 F.2d 27, 29 (9th Cir. 1978). Rule 41(b) of the

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Federal Rules of Civil Procedure provides that “[f]or failure of the plaintiff to prosecute or

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to comply with these rules or any order of court, a defendant may move for dismissal of an

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action.” In Link v. Wabash Railroad Co., 370 U.S. 626, 629-31 (1962), the Supreme Court

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recognized that a federal district court has the inherent power to dismiss a case sua sponte

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for failure to prosecute, even though the language of Rule 41(b) of the Federal Rules of Civil

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Procedure appears to require a motion from a party. Moreover, in appropriate circumstances,

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the Court may dismiss a complaint for failure to prosecute even without notice or hearing.

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See id. at 633.

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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.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988)

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(quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). “The first two of these

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factors favor the imposition of sanctions in most cases, while the fourth factor cuts against

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a default or dismissal sanction. Thus the key factors are prejudice and availability of lesser

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sanctions.” Wanderer v. Johnson, 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 respond to Court orders prevents the case from proceeding in the foreseeable future. The
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fourth factor, as always, weighs against dismissal. The fifth factor requires the Court to

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consider whether a less drastic alternative is available. The Court has already ordered

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Plaintiff to (1) file a notice of change of address, or (2) show cause why this matter should

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not be dismissed for failure to prosecute in light of his failure to file a notice of change of

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address. Plaintiff has not responded.

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The Court finds that only one less drastic sanction is realistically available. Rule

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41(b) provides that a dismissal for failure to prosecute operates as an adjudication upon the

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merits unless the court in its order for dismissal otherwise specifies. In the instant case, the

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Court finds that a dismissal with prejudice would be unnecessarily harsh. The Amended

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Complaint and this action will therefore be dismissed without prejudice pursuant to Rule

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41(b) of the Federal Rules of Civil Procedure.

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IT IS THEREFORE ORDERED that pursuant to Rule 41(b) of the Federal Rules
of Civil Procedure this action is dismissed without prejudice.
DATED this 23rd day of July, 2013.

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