Williams v. Arizona, State of et al

Filing 8

ORDER that the Complaint and this action are dismissed without prejudice for failure to prosecute. The Clerk must enter judgment accordingly. IT IS FURTHER ORDERED denying as moot 2 Application/Motion for Leave to Proceed In Forma Pauperis and denying as moot 6 Motion to Seal Exhibit. Signed by Senior Judge Robert C Broomfield on 1/13/14.(LSP)

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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 Javon Tamar Williams, 10 11 12 No. CV 13-2306-PHX-RCB (MHB) Plaintiff, vs. ORDER State of Arizona, et al., 13 Defendants. 14 15 On November 12, 2013, Plaintiff Javon Tamar Williams, who was confined in the 16 Maricopa County Fourth Avenue Jail, filed a pro se civil rights Complaint and an 17 Application to Proceed In Forma Pauperis (Doc. 2). That same day, the Clerk of Court 18 issued a Notice of Assignment that informed Plaintiff of his obligation to promptly notify 19 the Court of any change of address. On November 22, 2013, the Notice of Assignment 20 was returned to the Court as undeliverable and with a notation that Plaintiff was no 21 longer in custody. On December 20, 2013, Plaintiff visited the Court and attempted to 22 submit documents to the Court that he did not want made available to others. Plaintiff 23 was given instructions for filing a document under seal and he filed a Motion to Seal 24 Exhibit (Doc. 6). 25 Assignment had been returned as undeliverable. Plaintiff did not provide a current 26 address and he was given a change of address form. Plaintiff has yet to submit a notice 27 of change of address. 28 Plaintiff was asked for his current address since the Notice of 1 Rule 83.3(d) of the Local Rules of Civil Procedure requires an unrepresented party 2 who is incarcerated to file a notice of change of address within seven days after the 3 effective date of the change. 4 accompanying the form complaint, which he included with his Complaint, that he must 5 immediately inform the Clerk of Court of a change of address or face possible dismissal. 6 Plaintiff has not complied with these requirements. Further, Plaintiff was informed in the instructions 7 Plaintiff has the general duty to prosecute this case. Fidelity Philadelphia Trust 8 Co. v. Pioche Mines Consol., Inc., 587 F.2d 27, 29 (9th Cir. 1978). In this regard, it is the 9 duty of a plaintiff who has filed a pro se action to keep the Court informed of his current 10 address and to comply with the Court’s orders in a timely fashion. The Court does not 11 have an affirmative obligation to locate Plaintiff. “A party, not the district court, bears 12 the burden of keeping the court apprised of any changes in his mailing address.” Carey v. 13 King, 856 F.2d 1439, 1441 (9th Cir. 1988). Plaintiff’s failure to keep the Court informed 14 of his new address constitutes a failure to prosecute. 15 Rule 41(b) of the Federal Rules of Civil Procedure provides that “[f]or failure of 16 the plaintiff to prosecute or to comply with these rules or any order of court, a defendant 17 may move for dismissal of an action.” In Link v. Wabash Railroad Co., 370 U.S. 626, 18 629-31 (1962), the Supreme Court recognized that a federal district court has the inherent 19 power to dismiss a case sua sponte for failure to prosecute, even though the language of 20 Rule 41(b) of the Federal Rules of Civil Procedure appears to require a motion from a 21 party. Moreover, in appropriate circumstances, the Court may dismiss a complaint for 22 failure to prosecute even without notice or hearing. Id. at 633. 23 In determining whether Plaintiff’s failure to prosecute warrants dismissal of the 24 case, the Court must weigh the following five factors: “(1) the public’s interest in 25 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk 26 of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 27 merits; and (5) the availability of less drastic sanctions.” Carey, 856 F.2d at 1440 28 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). “The first two of -2- 1 these factors favor the imposition of sanctions in most cases, while the fourth factor cuts 2 against a default or dismissal sanction. Thus the key factors are prejudice and availability 3 of lesser sanctions.” Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir. 1990). 4 Here, the first, second, and third factors favor dismissal of this case. Plaintiff’s 5 failure to keep the Court informed of his address prevents the case from proceeding in the 6 foreseeable future. The fourth factor, as always, weighs against dismissal. The fifth 7 factor requires the Court to consider whether a less drastic alternative is available. 8 Without Plaintiff’s current address, however, certain alternatives are bound to be futile. 9 Here, as in Carey, “[a]n order to show cause why dismissal was not warranted or an order 10 imposing sanctions would only find itself taking a round trip through the United States 11 mail.” Carey, 856 F.2d at 1441. 12 The Court finds that only one less drastic sanction is realistically available. Rule 13 41(b) provides that a dismissal for failure to prosecute operates as an adjudication upon 14 the merits “[u]nless the court in its order for dismissal otherwise specifies.” In the instant 15 case, the Court finds that a dismissal with prejudice would be unnecessarily harsh. The 16 Complaint and this action will therefore be dismissed without prejudice pursuant to Rule 17 41(b) of the Federal Rules of Civil Procedure. 18 IT IS ORDERED: 19 (1) The Complaint (Doc. 1) and this action are dismissed without prejudice 20 pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute. 21 The Clerk of Court must enter judgment accordingly. 22 ... 23 .... 24 .... 25 .... 26 27 28 -3- 1 2 3 (2) The Application to Proceed In Forma Pauperis (Doc. 2) and the Motion to Seal Exhibit (Doc. 6) are denied as moot. DATED this 13th day of January, 2014. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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