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)

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-