Tapscott v. Lavia et al

Filing 10

ORDER that pursuant to Rule 41(b) of the Federal Rules of Civil Procedure this action is dismissed without prejudice and the Clerk of the Court shall enter judgment accordingly. Signed by Senior Judge Paul G Rosenblatt on 7/24/2014. (KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Shelby Johnathan Tapscott,

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No. CV-14-00523-PHX-PGR (DKD)

Plaintiff,
v.

ORDER

Officer Lavia, et al.,

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Defendants.

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Plaintiff, formerly an inmate at the ASPC-Florence, filed a pro se Prisoner Civil
Rights Complaint pursuant to 42 U.S.C. § 1983 on March 13, 2014 (Doc. 1). The Court
issued a Notice of Assignment on that date, a copy of which was mailed to Plaintiff, in
which he was warned that failure to file a Notice of Change of Address could result in the
case being dismissed (Doc. 4). The Court issued an order for payment of the inmate
filing fee on April 14, 2014, and ordered Defendant Lavia to answer the Complaint
(Docs. 5, 6). On April 21, 2014 and July 7, 2014, copies of the Court's April 13 and June
30 Orders mailed to Plaintiff at his last known address were returned as undeliverable,
indicating that Plaintiff was no longer in custody (Docs. 7, 9). Plaintiff has not filed a
change of address.
Plaintiff has the general duty to prosecute this case. Fidelity Philadelphia Trust
Co. v. Pioche Mines Consolidated, Inc., 587 F.2d 27, 29 (9th Cir. 1978). In this regard, it
is the duty of a plaintiff who has filed a pro se action to keep the Court apprised of his or

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her current address and to comply with the Court's orders in a timely fashion. This Court
does not have an affirmative obligation to locate Plaintiff. "A party, not the district court,
bears the burden of keeping the court apprised of any changes in his mailing address."
Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988). Plaintiff's failure to keep the Court
informed of his new address constitutes failure to prosecute.
Rule 41(b) of the Federal Rules of Civil Procedure provides that "[f]or failure of
the plaintiff to prosecute or to comply with these rules or any order of court, a defendant
may move for dismissal of an action." In Link v. Wabash Railroad Co., 370 U.S. 626,
629-31 (1962), the Supreme Court recognized that a federal district court has the inherent
power to dismiss a case sua sponte for failure to prosecute, even though the language of
Rule 41(b) of the Federal Rules of Civil Procedure appears to require a motion from a
party. Moreover, in appropriate circumstances, the Court may dismiss a complaint for
failure to prosecute even without notice or hearing. Id. at 633.
In determining whether Plaintiff's failure to prosecute warrants dismissal of the
case, the Court must weigh the following five factors: "(1) the public's interest in
expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk
of prejudice to the defendants; (4) the public policy favoring disposition of cases on their
merits; and (5) the availability of less drastic sanctions." Carey, 856 F.2d at 1440
(quoting Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). "The first two of
these factors favor the imposition of sanctions in most cases, while the fourth factor cuts
against a default or dismissal sanction. Thus the key factors are prejudice and availability
of lesser sanctions." Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir. 1990).
Here, the first, second, and third factors favor dismissal of this case. Plaintiff's
failure to keep the Court informed of his address prevents the case from proceeding in the
foreseeable future. The fourth factor, as always, weighs against dismissal. The fifth
factor requires the Court to consider whether a less drastic alternative is available.
Without Plaintiff's current address, however, certain alternatives are bound to be futile.
Here, as in Carey, "[a]n order to show cause why dismissal is not warranted or an order
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imposing sanctions would only find itself taking a round trip tour through the United
States mail." 856 F.2d at 1441.
The Court finds that only one less drastic sanction is realistically available. Rule
41(b) provides that a dismissal for failure to prosecute operates as an adjudication upon
the merits "[u]nless the court in its order for dismissal otherwise specifies." In the instant
case, the Court finds that a dismissal with prejudice would be unnecessarily harsh. The
Complaint and this action will therefore be dismissed without prejudice pursuant to Rule
41(b) of the Federal Rules of Civil Procedure.
IT IS THEREFORE ORDERED that pursuant to Rule 41(b) of the Federal
Rules of Civil Procedure this action is dismissed without prejudice and the Clerk of the
Court shall enter judgment accordingly.
Dated this 24th day of July, 2014.

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