Rivera v. Sheppard ( 2022 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Benny G. Rivera, No. CV-20-1255-PHX-JAT (DMF) 10 Plaintiff, ORDER 11 v. 12 J. Adam Sheppard, et al., 13 Defendants. 14 15 Plaintiff filed a Complaint on June 24, 2020 (Doc. 1). On August 28, 2020, the 16 Court dismissed Plaintiff’s Complaint with leave to file an amended complaint (Doc. 9) 17 and ordered that “Plaintiff must file and serve a notice of a change of address in accordance 18 with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a 19 motion for other relief with a notice of change of address. Failure to comply may result in 20 dismissal of this action” and “[i]f Plaintiff fails to timely comply with every provision of 21 this Order, including these warnings, the Court may dismiss this action without further 22 notice. See Ferdik, 963 F.2d at 1260-61 (a district court may dismiss an action for failure 23 to comply with any order of the Court)” (Id. at 9). 24 After Plaintiff filed his First Amended Complaint, on October 9, 2020, the Court 25 again dismissed the First Amended Complaint with leave to file a second amended 26 complaint and again warned Plaintiff that he needed to file a change of address and follow 27 every provision of the Court’s Order (Docs. 11, 12 at 8-9). Plaintiff filed a Second 28 Amended Complaint on November 4, 2020, and the Court dismissed Plaintiff’s Second 1 Amended Complaint and entered judgment in this matter (Docs. 13, 14, 15). Plaintiff filed 2 a notice of appeal. After considering allegations from Plaintiff’s original Complaint and 3 Second Amended Complaint together, the Court of Appeals reversed and remanded this 4 case (Doc. 21). 5 On October 26, 2021, the Court ordered that Defendant Sheppard must answer 6 Count One of the Second Amended Complaint in his official capacity only and Defendants 7 Solberg, Osborn, and Kenny must answer Count Three in their official capacities only 8 (Doc. 22). Consistent with the Mandate of the Court of Appeals, the Court also required 9 Defendants to address the allegations of the original Complaint that the Court of Appeals 10 considered to find the Second Amended Complaint should not have been dismissed. (Id. 11 at 2-3 & n.1).1 12 The Court further ordered that “Plaintiff must complete and return the service packet 13 to the Clerk of Court within 21 days of the date of filing of this Order. The United States 14 Marshal will not provide service of process if Plaintiff fails to comply with this Order” (Id. 15 at 4). The Order stated that Plaintiff is warned that he “must file and serve a notice of a 16 change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. 17 Plaintiff must not include a motion for other relief with a notice of change of address. 18 Failure to comply may result in dismissal of this action” and that “if he fails to timely 19 comply with every provision of this Order, including these warnings, the Court may 20 dismiss this action without further notice” (Id. at 3). The October 26, 2021 Order (along 21 with the service packets) were mailed to Plaintiff. In mid-November 2021, the Order and 22 service packets were returned as undeliverable indicating that Plaintiff is no longer in 23 custody (Doc. 23). 24 On December 16, 2021, after Plaintiff failed to return the service packets for 25 Defendants Sheppard, Solberg, Osborn, and Kenny, the Court issued an order to show 26 1 This Court did not interpret the Mandate as permitting this Court to require 27 Plaintiff to file a Third Amended Complaint with all of his allegations in one pleading because the Court of Appeals concluded: “Liberally construed, these allegations ‘are 28 sufficient to warrant ordering [defendants] to file an answer.’” (Doc. 21 at 2) (citations omitted). 1 cause as to why the matter should not be dismissed for failure to comply with Court orders 2 and for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure 3 as to Plaintiff’s failure to file a Notice of Change of Address (Doc. 24). This Order was 4 again returned as undeliverable indicating that Plaintiff is no longer in custody (Doc. 25). 5 Before dismissing pursuant to Federal Rule of Civil Procedure 41(b), it is 6 “preferred” that the district court make explicit findings on the factors in Henderson v. 7 Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). See Epicenter Loss Recovery LLC v. Burford 8 Cap. Ltd., 855 F. App’x 388 (9th Cir. 2021). These factors are: “(1) the public’s interest 9 in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk 10 of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 11 merits; and (5) the availability of less drastic sanctions.” Carey v. King, 856 F.2d 1439, 12 1440 (9th Cir. 1988) (per curiam) (quoting Henderson v. Duncan, 779 F.2d 1421, 1423 13 (9th Cir. 1986)). “The first two of these factors favor the imposition of sanctions in most 14 cases, while the fourth factor cuts against a default or dismissal sanction. Thus the key 15 factors are prejudice and availability of lesser sanctions.” Wanderer v. Johnston, 910 F.2d 16 652, 656 (9th Cir. 1990). 17 Here, the first, second, and third factors favor dismissal of this case. Plaintiff’s 18 failure to update his contact information prevents the case from proceeding in the 19 foreseeable future, if ever. The fourth factor, as always, weighs against dismissal. The 20 fifth factor requires the Court to consider whether a less drastic alternative is available. 21 The Court has already used the less drastic alternative of an order to show cause to no avail. 22 Further, the Court will dismiss the Defendants without prejudice as a less drastic sanction 23 to a with prejudice dismissal. 24 Thus, Plaintiff not having filed a notice of change of address and there being no 25 response to the order to show cause, the Court will dismiss the claims against Defendants 26 Sheppard, Solberg, Osborn, and Kenny without prejudice. 27 Accordingly, 28 IT IS ORDERED withdrawing the reference to the Magistrate Judge as to this 1 || entire case. 2 IT IS FURTHER ORDERED dismissing without prejudice Defendants Sheppard, || Solberg, Osborn, and Kenny (who are the only Defendants in this case). The Clerk of the Court shall enter judgment accordingly. 5 Dated this 12th day of January, 2022. 6 7 ' James A. CO 9 Senior United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-