Holmes v. Ryan

Filing 20

ORDER that Plaintiff's Complaint 1 and this action are dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute. The Clerk of Court must enter judgment accordingly. Signed by Judge David G Campbell on 12/16/2014. (ALS)

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1 2 MH WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Joseph Carlton Holmes, 10 11 12 No. CV 14-0379-PHX-DGC (BSB) Plaintiff, v. ORDER Charles L. Ryan, 13 Defendant. 14 15 On February 26, 2014, Plaintiff Joseph Carlton Holmes, who was then confined in 16 the Maricopa County Fourth Avenue Jail, filed a pro se civil rights Complaint pursuant to 17 42 U.S.C. § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis. On March 18 21, 2014, the Court denied the Application to Proceed and gave Plaintiff 30 days in 19 which to either pay the $400.00 filing and administrative fees or file a complete in forma 20 pauperis application. On March 27, 2014, Plaintiff filed an “Application for Deferral or 21 Waiver of Court Fees And/Or Costs” that was denied in an Order dated June 11, 2014. 22 Plaintiff was again granted leave to pay the required fees or file a complete in forma 23 pauperis application, and on September 22, 2014, he filed another Application to Proceed 24 (Doc. 17). 25 On November 26, 2014, Plaintiff filed a Motion to Issue Summons (Doc. 19) in 26 which he indicates that he was released from jail on November 20, 2014. Plaintiff has 27 not filed a Notice of Change of Address or provided the Court with a mailing address 28 where service can be effected. 1 Rule 3.4 of the Local Rules of Civil Procedure requires that an incarcerated 2 litigant comply with the instructions attached to the court-approved Complaint form. 3 Those instructions state: “You must immediately notify the clerk . . . in writing of any 4 change in your mailing address. Failure to notify the court of any change in your mailing 5 address may result in the dismissal of your case.” (Information and Instructions for a 6 Prisoner Filing Civil Rights Complaint at 2.) In addition, this Court’s Orders of March 7 21, June 11, and September 12 each warned Plaintiff that a failure to file and serve a 8 notice of a change of address could result in dismissal. 9 Plaintiff has the general duty to prosecute this case. Fidelity Philadelphia Trust 10 Co. v. Pioche Mines Consolidated, Inc., 587 F.2d 27, 29 (9th Cir. 1978). In this regard, it 11 is the duty of a plaintiff who has filed a pro se action to keep the Court apprised of his 12 current address, and to comply with the Court’s orders in a timely fashion. This Court 13 does not have an affirmative obligation to locate Plaintiff. “A party, not the district court, 14 bears the burden of keeping the court apprised of any changes in his mailing address.” 15 Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988). Plaintiff’s failure to keep the Court 16 informed of his new address constitutes failure to prosecute. 17 Rule 41(b) of the Federal Rules of Civil Procedure provides that “[f]or failure of 18 the plaintiff to prosecute or to comply with these rules or any order of court, a defendant 19 may move for dismissal of an action.” In Link v. Wabash Railroad Co., 370 U.S. 626, 20 629-31 (1962), the Supreme Court recognized that a federal district court has the inherent 21 power to dismiss a case sua sponte for failure to prosecute, even though the language of 22 Rule 41(b) of the Federal Rules of Civil Procedure appears to require a motion from a 23 party. Moreover, in appropriate circumstances, the Court may dismiss a complaint for 24 failure to prosecute even without notice or hearing. Id. at 633. 25 In determining whether Plaintiff’s failure to prosecute warrants dismissal of the 26 case, the Court must weigh the following five factors: “(1) the public’s interest in 27 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk 28 of prejudice to the defendants; (4) the public policy favoring disposition of cases on their -2- 1 merits; and (5) the availability of less drastic sanctions.” Carey, 856 F.2d at 1440 2 (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). “The first two of 3 these factors favor the imposition of sanctions in most cases, while the fourth factor cuts 4 against a default or dismissal sanction. Thus the key factors are prejudice and availability 5 of lesser sanctions.” Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir. 1990). 6 The first and second factors favor dismissal, as Plaintiff’s failure to supply the 7 Court with an address will prevent this case from proceeding. The potential prejudice to 8 the Defendants is minimal, however, as they have yet to be served. The fourth factor, as 9 always, weighs against dismissal. As for the availability of less drastic sanctions, certain 10 alternatives are bound to be futile in the absence of a current mailing address for Plaintiff. 11 Here, as in Carey, “[a]n order to show cause why dismissal is not warranted or an order 12 imposing sanctions would only find itself taking a round trip tour through the United 13 States mail.” 856 F.2d at 1441. Only one less drastic sanction is realistically available. 14 Rule 41(b) provides that a dismissal for failure to prosecute operates as an adjudication 15 upon the merits “[u]nless the court in its order for dismissal otherwise specifies.” In the 16 instant case, the Court finds that a dismissal with prejudice would be unnecessarily harsh. 17 The Complaint and this action will therefore be dismissed without prejudice pursuant to 18 Rule 41(b) of the Federal Rules of Civil Procedure. 19 IT IS ORDERED that Plaintiff’s Complaint (Doc. 1) and this action are 20 dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil 21 Procedure for failure to prosecute. The Clerk of Court must enter judgment accordingly. 22 Dated this 16th day of December, 2014. 23 24 25 26 27 28 -3-

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