Garcia-Hernandez v. USA

Filing 8

ORDER: The Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody Pursuant to 28 U.S.C. § 2255 PO 14-24446-TUC-BPV (Doc. 2) and CV 14-2185-TUC-BPV (Doc. 1 ) is DENIED; CV 14-2185-TUC-BPV is DISMISSED without prejudice, and; The Clerk of the Court shall enter judgment and shall then close its file in this matter. Signed by Magistrate Judge Bernardo P Velasco on 2/23/2015. (ALS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Agustin Garcia-Hernandez,
Movant,

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ORDER

v.

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No. CV-14-02185-TUC-BPV
PO-14-24446-TUC-BPV

USA,

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Respondent.

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Movant, Agustin Garcia-Hernandez, previously incarcerated at the Giles W Dalby

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Correctional Facility in Post, Texas, address presently unknown, filed with the Clerk of

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the Court on June 20, 2014, a pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set

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Aside, or Correct Sentence by a Person in Federal Custody. (Doc. 1.)

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On June 20, 2014, the Court entered a Notice of Assignment and mailed a copy of

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the document to Plaintiff at the address listed on his Petition. (Doc. 2.) On December 11,

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2014, the Court entered an order directing the Clerk of the Court to serve a copy of the §

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2255 Motion on the United States Attorney for the District of Arizona. (Doc. 3.) The

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order was mailed by the Clerk of Court to Petitioner at his last known address at the Giles

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W. Dalby Correctional Facility in Post, TX on December 12, 2014. On December 23,

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2014 the order was returned to the Clerk of the Court stamped "Released Return to

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Sender” and indicating "Unable to Forward." (Doc. 4.) Since that time, Petitioner has

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failed to file a Notice of Change of Address, or in any way to notify the Court of his

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whereabouts.

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On January 9, 2015, this Court ordered Petitioner to show cause why this matter

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should not be dismissed for failure to prosecute and failure to keep the Court informed of

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his current address by filing a writing with this Court within twenty days of the date of

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the order to show cause. (Doc. 6.) On January 27, 2015 the order to show cause was

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returned to the Court as undeliverable and Petitioner has failed to file any document in

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response to the order to show cause.

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Rule 83.3(d) of the Local Rules of Civil Procedure (LRCiv) requires that an

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unrepresented party who is incarcerated file a notice of address change within seven (7)

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days after the effective date of the change. Having failed to notify the Court of a new

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address,

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

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Co. v. Pioche Mines Consol., Inc., 587 F.2d 27, 29 (9th Cir. 1978). In this regard, it is the

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duty of a plaintiff who has filed a pro se action to keep the Court apprised of his or her

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current address and to comply with the Court's orders in a timely fashion. This Court

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does not have an affirmative obligation to locate Plaintiff. "A party, not the district court,

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bears the burden of keeping the court apprised of any changes in his mailing address."

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Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988). Plaintiff's failure to keep the Court

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informed of his new address constitutes failure to prosecute.

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Rule 41(b) of the Federal Rules of Civil Procedure provides that "[f]or failure of

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the plaintiff to prosecute or to comply with these rules or any order of court, a defendant

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may move for dismissal of an action." In Link v. Wabash R. Co., 370 U.S. 626, 629-31

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(1962), the Supreme Court recognized that a federal district court has the inherent power

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to dismiss a case sua sponte for failure to prosecute, even though the language of Rule

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41(b) of the Federal Rules of Civil Procedure appears to require a motion from a party.

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Moreover, in appropriate circumstances, the Court may dismiss a complaint for failure to

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prosecute even without notice or hearing. Id. at 633.

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In determining whether Plaintiff's failure to prosecute warrants dismissal of the

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case, the Court must weigh the following five factors: "(1) the public's interest in

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expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk

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of prejudice to the defendants; (4) the public policy favoring disposition of cases on their

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merits; and (5) the availability of less drastic sanctions." Carey, 856 F.2d at 1440

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

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

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

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of lesser 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. Movant's

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failure to keep the Court informed of his address prevents the case from proceeding in the

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foreseeable future. The fourth factor, as always, weighs against dismissal. The fifth

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factor requires the Court to consider whether a less drastic alternative is available.

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Without Movant's current address, however, certain alternatives are bound to be futile.

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Here, as in Carey, "[a]n order imposing sanctions would only find itself taking a round

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trip tour through the United States mail." 856 F.2d at 1441.

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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

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the merits "[u]nless the court in its order for dismissal otherwise specifies." In the instant

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case, the Court finds that a dismissal with prejudice would be unnecessarily harsh. The

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Complaint and this action should therefore be dismissed without prejudice pursuant to

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Rule 41(b) of the Federal Rules of Civil Procedure.
Accordingly,

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IT IS ORDERED:

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1.

The Motion to Vacate, Set Aside, or Correct Sentence by a Person in

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Federal Custody Pursuant to 28 U.S.C. § 2255 PO 14-24446-TUC-BPV (Doc. 2) and CV

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14-2185-TUC-BPV (Doc. 1) is DENIED;

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CV 14-2185-TUC-BPV is DISMISSED without prejudice, and;

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The Clerk of the Court shall enter judgment and shall then close its file in

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this matter.
Dated this 23rd day of February, 2015.

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