Hunt v. Von Blanckensee ( 2019 )

1 2 WO 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF ARIZONA 10 11 Maurice Hunt, No. CV 19-00104-TUC-JGZ 12 Plaintiff, ORDER 13 v. 14 B. Von Blanckensee, 15 Defendant. 16 17 The record reflects that pro se Plaintiff Maurice Hunt failed to comply with this 18 Court’s rules to keep the Court informed of his current address. Therefore, the Court will 19 dismiss this action. 20 On February 27, 2019, the same date that Hunt filed his Complaint, the Clerk of 21 Court sent Hunt a Notice of Assignment warning him that he “must file a Notice of Change 22 of Address if your address changes” and that failure to do so “will result in your document 23 being STRICKEN and/or your case being DISMISSED.” (Doc. 3, p. 2). The Court’s Local 24 Rules also require Hunt to keep the Court apprised of a change of address. See Rules of 25 Practice of the U.S. District Court for the District of Arizona, LRCiv 83.3(d) (an 26 unrepresented party who is incarcerated must submit a notice of change of address within 27 seven (7) days after the effective date of the change). On July 2, 2019, Court mail sent to 28 1 Hunt at his address of record was returned as “undeliverable” and “unable to forward.”1 2 (Doc. 5.) 3 The Court will dismiss this action pursuant to Rule 41(b), Fed. R. Civ. P., based 4 upon Hunt’s failure to prosecute his case and to comply with the Court’s rules. Hunt has 5 the general duty to prosecute this case. Fidelity Philadelphia Trust Co. v. Pioche Mines 6 Consolidated, Inc., 587 F.2d 27, 29 (9th Cir. 1978). “A party, not the district court, bears 7 the burden of keeping the court apprised of any changes in his mailing address.” Carey v. 8 King, 856 F.2d 1439, 1441 (9th Cir. 1988). Hunt’s failure to keep the Court informed of 9 his current address constitutes a failure to prosecute as well as a failure to comply with 10 LRCiv 83.3(d). 11 District courts have the inherent power to dismiss a case sua sponte for failure to 12 prosecute. Link v. Wabash Railroad Co., 370 U.S. 626, 629–31 (1962). In appropriate 13 circumstances, the Court may dismiss a complaint for failure to prosecute even without 14 notice or hearing. Id. at 633. Additionally, “[f]ailure to follow a district court’s local rules 15 is a proper ground for dismissal,” Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). 16 The same test applies regardless whether dismissal is for failure to prosecute or 17 failure to comply with the Court’s rules. In determining whether dismissal is warranted, 18 the Court must weigh the following five factors: “(1) the public’s interest in expeditious 19 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice 20 to the defendants; (4) the public policy favoring disposition of cases on their merits; and 21 (5) the availability of less drastic sanctions.” Carey, 856 F.2d at 1440 (quoting Henderson 22 v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986) ); see also Ghazali, 46 F.3d at 53 (same). 23 “The first two of these factors favor the imposition of sanctions in most cases, while the 24 1 The returned mail included the Court’s June 17, 2019 Order granting Plaintiff 30- 25 days’ leave to file a first amended complaint and to either pay the required fees or file an application to proceed in forma pauperis. (Doc. 4.) The Order also directed the Clerk of 26 Court to dismiss this action and to deny any pending unrelated motions as moot if Plaintiff failed to comply with the Order. 27 The Court notes that when Petitioner filed this action, he was incarcerated at the United States Penitentiary-Tucson in Arizona. As of the date of this Order, however, 28 Petitioner is incarcerated at the United States Penitentiary-Coleman in Florida. See https://www.bop.gov/inmateloc/. || fourth cuts against a default or dismissal sanction. Thus the key factors are prejudice and 2|| availability of lesser sanctions.” Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir. 1990). 3 Here, the first three factors favor dismissal of this case as Hunt has made no effort 4}| to continue with this action. The fourth factor, as always, weighs against dismissal. The fifth factor requires the Court to consider whether a less drastic alternative is available. 6|| Because the Court has no mailing address for Hunt, “[a]n order to show cause why dismissal [is] not warranted or an order imposing sanctions would only find itself taking a 8 || round trip tour through the United States mail.” Carey, 856 F.2d at 1441. Only one less 9|| drastic sanction is realistically available. Rule 41(b) provides that a dismissal for failure 10 || to prosecute operates as an adjudication upon the merits unless the court states otherwise in its dismissal order. Fed.R.Civ.P. 41(b). In the instant case, a dismissal with prejudice || would be unnecessarily harsh given that this action can be dismissed without prejudice 13 || pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. Therefore, 14 IT IS ORDERED that this action is dismissed without prejudice for failure to 15 || prosecute and for failure to comply with the Court’s rules. 16 The Clerk of Court is directed to enter judgment accordingly and to close its file in || this action. 18 Dated this 19th day of August, 2019. 19 20 21 pots Spgs 09 Honorable Jennifer Zfpps United States District Judge 23 24 25 26 27 28 -3-