Opinion
CV-20-02150-PHX-DJH (DMF)
08-22-2022
Adolph Rocco Cammilletti, Plaintiff, v. David Shinn, et al., Defendants.
THE HONORABLE DIANE J. HUMETEWA, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
Honorable Deborah M. Fine United States Magistrate Judge
This matter is on referral to the undersigned for pretrial proceedings pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure (Doc. 21 at 15)
Plaintiff initiated this action in November 2020. (Doc. 1) On June 7, 2021, Plaintiff filed a Third Amended Complaint, which is the operative complaint in this matter. (Doc. 19) Plaintiff's Third Amended Complaint relates to events that occurred during Plaintiff's incarceration in the Arizona State Prison Complex - Yuma. (Doc. 19) Although Plaintiff filed his pro se Third Amended Complaint while incarcerated, Plaintiff was released from Arizona Department of Corrections, Rehabilitation, and Reentry (“ADCRR”) incarceration several months ago. (See Doc. 39)
Most of the Defendants have been served and appeared. (Docs. 22, 23, 25, 26, 27, 29) Despite expiration of time for service of Defendant Morales, Plaintiff has not served Defendant Morales. Further, Plaintiff has failed to timely notify the Court of Plaintiff's change of address.
For the reasons set forth below, it is recommended that Defendant Morales be dismissed without prejudice for failure to timely serve Defendant Morales and that this entire matter be dismissed without prejudice for Plaintiff's failure to notify the Court of Plaintiff's change of address.
I. PROCEDURAL HISTORY AND POSTURE
On November 9, 2020, Plaintiff Adolph Rocco Cammilletti (“Plaintiff”) filed a pro se Complaint. (Doc. 1) Before any action by the Court other than judicial assignment (Doc. 2), on November 16, 2020, Plaintiff filed an Application for Leave to Proceed In Forma Pauperis and a First Amended Complaint. (Docs. 3, 4) The Court denied Plaintiff's Application to Proceed In Forma Pauperis as incomplete and ordered Plaintiff to file a signed Certificate to serve as a signature on Plaintiff's First Amended Complaint. (Doc. 5 at 2-3) On January 8, Plaintiff filed several documents which were docketed as a second Application for Leave to Proceed In Forma Pauperis. (Doc. 9) The Court denied Plaintiff's second Application for Leave to Proceed In Forma Pauperis as incomplete. (Doc. 10 at 3) Plaintiff thereafter filed a third Application to Proceed In Forma Pauperis. (Doc. 11)
On February 18, 2021, the Court granted Plaintiff's third Application to Proceed In Forma Pauperis and dismissed Plaintiff's First Amended Complaint for failure to state a claim. (Doc. 13 at 16) Plaintiff filed a Second Amended Complaint on April 22, 2021. (Doc. 17) On May 7, 2021, the Court dismissed Plaintiff's Second Amended Complaint for failure to state a claim. (Doc. 18)
On June 7, 2021, Plaintiff filed a Third Amended Complaint. (Doc. 19) In Count One of the Third Amended Complaint, Plaintiff alleged that Defendants, including Defendant Morales, subjected Plaintiff to cruel and unusual punishment because Defendants placed Plaintiff in an isolation cell with another prisoner without a functioning toilet or water, did not allow Plaintiff to recreate or shower, and refused to ensure that Plaintiff received prescribed medications. (Doc. 19 at 6-22) Plaintiff argued that Defendants “(1) deprived him of sufficient living space and sanitary living conditions and (2) subjected [Plaintiff] “to ‘unnecessary pain and suffering caused by [an inability] to move, exercise, or ambulate.'” (Doc. 21 at 7) Plaintiff alleged two additional counts for relief and named fourteen defendants in the Third Amended Complaint: David Shinn, Gloria Mattice, Brin Hofer, Carli Myers, Elijah Jordan, D. Barnette, Sergeant Kaiser, Sergeant Nakey, C.O. IV D. Bojorquez, C.O. III R. Anaya, C.O. III Balladares, C.O. II Lopez, C.O. Morales, and Culinary Supervisor John Doe. (Doc. 19 at 1-2)
In the Court's Screening and Service Order filed October 5, 2021, the Court dismissed Counts Two and Three of the Third Amended Complaint, ordered Defendants Jordan, Balladares, Lopez, Kaiser, and Morales to answer the relevant portions of Count One, and dismissed the remaining Defendants. (Doc. 21 at 13) The Court directed the Clerk of Court to send Plaintiff a service packet, including summons and request for waiver forms for Defendants Jordan, Balladares, Lopez, Kaiser, and Morales, and instructed that:
(5) Plaintiff must complete and return the service packet to the Clerk of Court within 21 days of the date of filing of this Order. The United States Marshal will not provide service of process if Plaintiff fails to comply with this Order.
(6) If Plaintiff does not either obtain a waiver of service of the summons or complete service of the Summons and Third Amended Complaint on a Defendant within 90 days of the filing of the Complaint or within 60 days of the filing of this Order, whichever is later, the action may be dismissed as to each Defendant not served. Fed.R.Civ.P. 4(m); LRCiv 16.2(b)(2)(B)(ii).(Id.) The deadline to complete service was therefore on December 4, 2021. In the October 5, 2021, Order, the Court also warned Plaintiff that:
Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action. []
If Plaintiff fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court).(Id. at 13)
Regarding service of Defendant Morales, Plaintiff timely returned the service packet. (Doc. 24) On November 23, 2021, the United States Marshal attempted service on Defendant Morales at the address Plaintiff had provided for service, which was the address of the Arizona State Prison Complex - Yuma. (Id.) The United States Marshal returned the service packet unexecuted because the United States Marshal was “unable to locate” Defendant Morales at the service address. (Id.)
After the remaining Defendants besides Defendant Morales were served and appeared (Docs. 22, 23, 25, 26, 27, 29), the Court its January 5, 2022, Scheduling and Discovery Order. (Doc. 30) The Court also ordered regarding service of Defendant Morales:
1. Within ten (10) days from the date this Order is filed, Defendants shall provide Plaintiff with Defendant Morales's current work location if said Defendant is still employed with the ADOC. If Plaintiff is provided this information, he shall prepare and return a service packet to the Clerk of the Court. The Clerk of the Court is further directed to send a service packet to Plaintiff. If Defendant Morales is no longer employed with the ADOC, Defendants shall file UNDER SEAL Defendant Morales' last known home address. Upon receipt of that information, the Clerk of the Court shall prepare and send to the U.S. Marshal a service packet for service of the Summons and Complaint upon Defendant Morales.
2. The time for completing service shall be extended sixty (60) days from the date this Order is filed.(Doc. 31 at 1-2)
On January 18, 2022, Counsel for Defendants Kaser, Lopez, and Valladares filed an unsealed notice informing that counsel could not identify Defendant Morales because multiple correctional officers assigned to the Arizona State Prison Complex - Yuma during the relevant time period had the surname Morales. (Doc. 32 at 1-2)
On January 24, 2022, the Court issued an Order stating that:
[i]t is Plaintiff's responsibility and not the Court's or the United States Marshal's Office to obtain accurate information for service. Neither the Court nor the United States Marshal may conduct investigation on Plaintiff's behalf. Defense counsel for the State Defendants will be ordered to set up a call with Plaintiff to address the service information issue regarding Defendant Morales.(Doc. 33 at 2) Further, the Court ordered the Clerk of Court to send Plaintiff a service packet for Defendant Morales; ordered Plaintiff to complete the service packet for Defendant Morales, including a first name and/or badge number, and return the service packet within 28 days of the Court's Order; and ordered Defendants' counsel to set up a call with Plaintiff to address service of Defendant Morales. (Id. at 2-3)
On February 1, 2022, Defendants Kaser, Lopez, and Valladares filed a notice of compliance stating that Plaintiff and Defendants' counsel met telephonically to discuss the identity of Defendant Morales. (Doc. 34)
Shortly thereafter, Plaintiff returned a service packet for previously dismissed Defendant Shinn. (Doc. 35) On February 7, 2022, the Clerk of Court sent the Shinn service packet back to Plaintiff with instructions that the service packet ordered pertained to Defendant Morales. (Id.)
Plaintiff did not return a completed service packet for Defendant Morales. Therefore, on March 28, 2022, the Court issued an Order to Show Cause and ordered that “Plaintiff shall, within fourteen (14) days from the date of this Order, return the service packet as to Defendant Morales or show cause in writing filed with the Court why the claims against Defendant Morales should not be dismissed for failure to comply with Court orders.” (Doc. 36 at 3)
On April 6, 2022, Plaintiff submitted a letter, docketed as a response to the Court's Order to Show Cause, in which Plaintiff stated that he was moved from the Arizona State Prison Complex - Yuma, which caused Plaintiff difficulty in obtaining information for his case; that Plaintiff was due to be released from prison on April 15, 2022; and that Plaintiff did not have a service packet for Defendant Morales. (Doc. 37) Plaintiff requested additional time to complete and return the service packet for Defendant Morales. On April 12, 2022, the Court granted Plaintiff additional time to complete and return the service packet for Defendant Morales. (Doc. 38 at 2) The Court's Order stated that “it is improper for a party to communicate directly with court personnel” and informed Plaintiff that “[a]ny request for action by the Court must be in the form of a motion that complies with the Rules of Practice of the United States District Court for the District of Arizona (the Local Rules) and the Federal Rules of Civil Procedure.” (Id. at 1) The Order instructed the Clerk of Court to send Plaintiff a new service packet and ordered Plaintiff to complete and return the service packet for Defendant Morales by May 15, 2022. (Id. at 2) The Order further reminded “Plaintiff of his obligations to timely submit a Notice of Change of Address.” (Id.)
On May 2, 2022, the clerk docketed as a “notice” an April 20, 2022, letter from Plaintiff. (Doc. 39) The letter notified of Plaintiff's change of address to “New Freedom, 2532 W Peoria Ave., Phoenix, AZ 85029” and stated that “DOC will not give any information on CO Morales[.]” (Id.) Plaintiff wrote, “I don't know what I could do at this point in regards to Defendant Morales.” (Id.) Nevertheless, in the letter, Plaintiff requested that Defendant Morales not be dismissed from this matter. (Id.)
In a second Order to Show Cause issued on May 25, 2022, Plaintiff was again reminded that direct communication with court personnel was improper and that “any request for action by the Court must be in the form of a motion[.]” (Doc. 41 at 1-2) The Court determined that Plaintiff had not satisfied the first Order to Show cause because Plaintiff did “not detail what efforts he has taken to obtain the information he needs to complete and return the service packet as to Defendant Morales. Nor has Plaintiff set forth a plan for obtaining such information.” (Id. at 2) The Court extended to twenty-one days from the Court's May 25, 2022, Order the deadline for Plaintiff to return the completed service packet for Defendant Morales or show cause in writing why the claims against Defendant Morales should not be dismissed for failure to comply. (Id.) The Order again reminded that “it is Plaintiff's responsibility and not the Court's or the United States Marshal's Office to obtain accurate information for service. Neither the Court nor the United States Marshal may conduct investigation on Plaintiff's behalf (Doc. 33).” (Id.)
On June 6, 2022, the Court's second Order to Show Cause and the service packet mailed to Plaintiff's new address were returned to the Court as undeliverable and unable to be forwarded. (Doc. 42) The time to comply with the Court's Order to Show Cause expired on June 15, 2022.
Since Plaintiff's April 30, 2022, letter filed on May 2, 2022 (Doc. 39), Plaintiff has neither returned a completed service packet for Defendant Morales with a first name and/or badge number, obtained a waiver of service, nor completed service of the Summons and Third Amended Complaint on Defendant Morales. Plaintiff has not made any filings in this matter since the May 2, 2022, filing of Plaintiff's April 30, 2022, letter. ADCRR's inmate search website lists Plaintiff's incarceration release date as “04/22/2022”, designates Plaintiff as an “absconder” with the notation “RELEASEE ABSCND”, and states that Plaintiff's “[m]ailing address is not available.” See https://corrections.az.gov/public-resources/inmate-datasearch (last accessed on August 22, 2022).
The Court's Scheduling and Discovery Order provides that “[d]iscovery shall be conducted promptly, and the last day by which discovery requests may be made is June 3, 2022.” (Doc. 30 at 2) The dispositive motions deadline is September 12, 2022. (Id. at 3) There are no notices of service of discovery requests by Plaintiff reflected on the docket.
II. FAILURE TO SERVE DEFENDANT MORALES
The first issue before the Court is whether to grant Plaintiff an extension of time to serve Defendant Morales pursuant to Fed.R.Civ.P. 4(m) or whether to dismiss unserved Defendant Morales without prejudice for failure to serve. A federal court does not have “personal jurisdiction over a defendant unless the defendant has been served in accordance with Fed.R.Civ.P. 4.” Travelers Cas. & Sur. Co. of America v. Brenneke, 551 F.3d 1132, 1135 (9th Cir. 2009) (internal quotation marks and citations omitted). Rule 4(m) provides that:
[i]f a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service must be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. This subdivision (m) does not apply to service in a foreign country under Rule 4(f), 4(h)(2), or 4(i)(1), or to service of a notice under Rule 71.1(d)(3)(A).Fed. R. Civ. P. 4(m). A “plaintiff is responsible for having the summons and complaint served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person who makes service.” Fed.R.Civ.P. 4(c)(1).
There are “two avenues for relief' from the time limit in Rule 4(m). Lemoge v. United States, 587 F.3d 1188, 1198 (9th Cir. 2009). The first, which is “mandatory,” requires a district court to “extend time for service upon a showing of good cause.” Id. (citing In re Sheehan, 253 F.3d 507, 512 (9th Cir. 2001)). Under the second, which is discretionary, “if good cause is not established, the district court may extend time for service upon a showing of excusable neglect.” Id. Although the Ninth Circuit has not “articulate[d] a specific test that a court must apply in exercising its discretion under Rule 4(m),” Sheehan, 253 F.3d at 513, a Court may consider factors such as “a statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, and eventual service.” Efaw v. Williams, 473 F.3d 1038, 1041 (9th Cir. 2007).
A. The Record Does Not Establish Good Cause for a Mandatory Extension of Time
“At a minimum, good cause means excusable neglect[,]” but three factors may also be considered to determine if there is good cause for an extension of time to effectuate service: “(a) the party to be served personally received actual notice of the lawsuit; (b) the defendant would suffer no prejudice; and (c) plaintiff would be severely prejudiced if his complaint were dismissed.” Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991) (applying former Rule 4(j) establishing a 120-day time limit for service).
Here, the record does not support a finding of excusable neglect. The Court has granted Plaintiff multiple extensions of time to return the properly completed service packet and to effectuate service, including on Plaintiff's request for time to obtain service information after Plaintiff's release from custody. There is no evidence that Plaintiff has utilized any discovery tools available to him to obtain service information for Defendant Morales. As explanation for Plaintiff's delay in response to the Court's first Order to Show Cause (Doc. 36), Plaintiff argued that the ADCRR would not give Plaintiff information on Defendant Morales and stated that he “d[id]n't know what [he] can do at this point in regards to Defendant Morales.” (Doc. 37 at 1) Plaintiff only requested “that the court not dismisse [sic] on Defendant Morales” but did not provide a plan for service (Id.) Further, Plaintiff did not respond to the Court's second Order to Show Cause. (Doc. 41) This failure is at least in part due to Plaintiff's failure to update the Court with his current address despite the Court's Order that Plaintiff must timely do so.
Nothing in the record suggests that Defendant Morales has received actual notice of Plaintiff's lawsuit. Defendant Morales has not been served with process, has not made an appearance before the Court, and has not contacted the Court in any manner. Further, appearing Defendants' counsel represent that they do not know which employee with the last name Morales is the person to whom Plaintiff's Third Amended Complaint is directed.
Accordingly, neither excusable neglect nor factor (a) supports a finding of good cause. As for factor (b), the loss of “a quick victory” for Defendant Morales is not prejudicial. Bateman v. United States Postal Service, 231 F.3d 1220, 1225 (9th Cir. 2000). Yet Plaintiff's lawsuit has been pending for nearly two years, and extending time for service would require Defendant Morales to litigate events that occurred over two years ago. Extending time for service of Defendant Morales would also delay disposition on the merits of Plaintiff's claims against Defendants Jordan, Lopez, Kaser, and Valladares. See, e.g., Tate v. Hernandez, 2021 WL 2043219, at *2 (D. Ariz. Apr. 29, 2021) (risk of prejudice to defend 18-month-old suit over events that occurred over two years prior); Pember v. Ryan, 2014 WL 3397735, at *6 (D. Ariz. July 11, 2014) (prejudice to defendants due to passage of over two years).
As for factor (c), “[a] dismissal for untimely service is required to be a dismissal without prejudice[,]” thereby allowing a “plaintiff to refile the complaint and effect timely service.” United States v. 2,164 Watches, More or Less, Bearing a Registered Trademark of Guess?, Inc., 366 F.3d 776, 773 n.2 (9th Cir. 2004). If a plaintiff cannot refile a complaint due to a statute of limitations, however, dismissal would severely prejudice a plaintiff. See, e.g., Trueman v. Johnson, 2011 WL 6721327, at *4 (D. Ariz. Dec. 21, 2011). Because “Section 1983 does not include its own statute of limitations ... federal courts apply the statute of limitations governing personal injury claims in the forum state.” Finkle v. Ryan, 174 F.Supp.3d 1174, 1186 (D. Ariz. 2016). In Arizona, where Plaintiff alleges the events in his Third Amended Complaint took place, the statute of limitations “for personal injury claims is two years.” Id. Plaintiff appears to allege that the events underlying Plaintiff's claim against Defendant Morales occurred in May and June of 2020. (Doc. 19 at 9-19) Therefore, the statute of limitations on Plaintiff's claim against Defendant Morales likely expired in May or June of 2022, and likely barring Plaintiff from refiling his Complaint following dismissal of Defendant Morales.
Although an expired statute of limitations is a relevant factor in determining whether good cause exists, it is not dispositive. See Martin v. City of Long Beach, 246 F.3d 674, 674 (9th Cir. 2000) (expired statute of limitations “does not compel the district court” to extend time for service for good cause); Modee v. Corizon Health, 2020 WL 555409, at *3 (D. Ariz. Jan. 9, 2020) (report and recommendation adopted by Modee v. Corizon Health, 2020 WL 554386, at *1 (D. Ariz. Feb. 4, 2020)) (expired statute of limitations did not excuse failure to timely serve or to make plans to do so). Plaintiff has not provided the Court with any plans he has made to effectuate service of Defendant Morales. The Court has allowed Plaintiff multiple extensions of time to serve Defendant Morales. (See Docs. 33, 36, 38, 41) Further, Plaintiff has made no filings in this matter since the May 2, 2022, filing of his April 30, 2022, letter. (Doc. 39) On this record, the Court has no confidence that an additional extension of time will result in service of Defendant Morales.
Accordingly, the Court finds that good cause for an extension of time to serve does not exist on the record before the Court. Thus, an extension of time for Plaintiff to serve Defendant Morales is not mandatory.
B. A Discretionary Extension of Time is Unwarranted
Where good cause does not exist, the Court may grant a discretionary extension of time for Plaintiff to serve Defendant Morales with the Complaint. The Court has “broad” but not limitless “discretion to extend time for service under Rule 4(m).” Efaw, 473 F.3d at 1041. In deciding whether to extend the time for service, “a district court may consider factors ‘like a statute of limitations bar, prejudice to the defendant, actual notice of a lawsuit, and eventual service.'” Id. (quoting Troxell v. Fedders of N. Am., Inc., 160 F.3d 381, 383 (7th Cir. 1998)).
As discussed above, the statute of limitations may bar Plaintiff from refiling his Third Amended Complaint claim against Defendant Morales. Defendant Morales has had no actual notice of Plaintiff's lawsuit, and Defendant Morales has not been served. Further, Defendant Morales would suffer some prejudice if the Court were to allow Plaintiff an extension of time to serve the Third Amended Complaint upon Defendant Morales, having to defend a claim that grows stale over time.
In his filings, Plaintiff has not provided the Court with any plans he has made to effectuate service of Defendant Morales. The Court has allowed Plaintiff several extensions of time to serve Defendant Morales. (See Docs. 33, 36, 38, 41) Further, the Court ordered appearing Defendants' counsel to report on whereabouts of Defendant Morales and to confer with Plaintiff about identifying and serving Defendant Morales, which did not lead to service of Defendant Morales. Plaintiff most recently wrote, “I don't know what I could do at this point in regards to Defendant Morales.” (Doc. 39) The Court has no confidence that an additional extension of time will result in service of Defendant Morales.
The Court has repeatedly reminded Plaintiff that it remains Plaintiff's responsibility to obtain accurate information for service of Defendant Morales. (Doc. 33 at 2; Doc. 41 at 2) Plaintiff has not obtained accurate service information despite the extended period of time Plaintiff has been allotted to do so. There is no information in the record indicating that granting additional time for service of Defendant Morales will be useful for effectuating service.
Under the circumstances before the Court at this time, Plaintiff is not entitled to another discretionary extension of time to serve Defendant Morales.
C. Dismissal Without Prejudice of Defendant Morales is Appropriate
Because Plaintiff has not timely served Defendant Morales, Plaintiff has not returned to the Court a completed service packet for Defendant Morales with a first name and/or badge number for the United States Marshal to again attempt to effectuate service, and the record does not establish adequate cause to grant Plaintiff an extension of time for service, it is recommended that Plaintiff's claims against Defendant Morales be dismissed without prejudice pursuant to Fed.R.Civ.P. 4(m) for failure to timely serve Defendant Morales.
II. FAILURE TO NOTIFY THE COURT OF CHANGE OF ADDRESS
The second issue before the Court is whether to dismiss this entire matter for Plaintiff's failure to notify the Court of Plaintiff's change of address.
In the absence of a motion to dismiss from a party, the United States Supreme Court has recognized that a district court has the inherent power to dismiss an action sua sponte for lack of prosecution. Link v. Wabash R. Co., 370 U.S. 626, 629-33 (1962); c.f. Fed.R.Civ.P. 41(b) (“If the plaintiff fails to prosecute or comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.”). This inherent power is “governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Id. at 630-31. It is Plaintiff's duty to prosecute his case. Fidelity Philadelphia Trust Co. v. Pioche Mines Consolidated, Inc., 587 F.2d 27, 29 (9th Cir. 1978). It is also Plaintiff's duty to “keep[] the Court apprised of any changes in his mailing address[,]” and failure to do so constitutes failure to prosecute. Carey v. King, 856 F.2d 1439, 1441 (9th Cir. 1988). A court need not provide notice to a plaintiff before dismissal. Link, 370 U.S. at 632.
Further, the Rules of Practice of the United States District Court, District of Arizona (“LRCiv”) 83.3(d) requires that:
[a]n attorney or unrepresented party must file a notice of a name or address change, and an attorney must also file a notice of a change of firm name or e-mail address. The notice must be filed no later than fourteen (14) days before the effective date of the change, except that an unrepresented party who is incarcerated must submit a notice within seven (7) days after the effective date of the change. A separate notice must be filed in each active case.
To determine whether a plaintiff's failure to prosecute warrants dismissal, a court weighs 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.” Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). A “district court abuses its discretion if it imposes a sanction of dismissal without first considering the impact of the sanction and the adequacy of less drastic sanctions.” United States v. National Medical Enterprises, Inc., 792 F.2d 906, 912 (9th Cir. 1986). However, “a district court's warning to a party that his failure to obey the court's order will result in dismissal can satisfy the consideration of alternatives requirement.” Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992) (internal citations omitted).
Here, the first and second factors weigh in favor of dismissal. Dismissal would allow the Court to manage its docket and would satisfy the “public's interest in expeditious resolution” of Plaintiff's claims. Id. If Plaintiff does not notify the Court of his new address or comply with Court orders, the resolution of Plaintiff's case will be delayed.
As for the third factor, Defendants would suffer prejudice if this matter is not dismissed. Defendant Morales has not received notice of Plaintiff's lawsuit, nor has Plaintiff served Defendant Morales with the Third Amended Complaint. Although the loss of “a quick victory” is not prejudicial, Bateman, 231 F.3d at 1225, Defendant Morales would have to defend a lawsuit that is nearly two years old, regarding events that occurred over two years ago. In addition, Defendants Jordan, Lopez, Kaser, and Valladares have had notice of Plaintiff's claims against them since Plaintiff executed service upon Defendants Jordan, Lopez, Kaser, and Valladares in November and December 2021. (Docs. 22, 23, 25, 26) Defendants Jordan, Lopez, Kaser, and Valladares filed answers in late December 2021 (Docs. 27, 29) and have been subject to delay because of Plaintiff's failure to notify the Court of his change of address and Plaintiff's consequent failure to prosecute. See Stewart v. Medical Review Committee, 2013 WL 5289526, at *3 (D. Ariz. Sept. 18, 2013) (order adopting report and recommendation) (delay in prosecution, plus age of the case, favored dismissal).
The fourth factor does not support dismissal, as dismissal of Plaintiff's claims at this stage would not support “the public policy favoring disposition of cases on their merits[.]” Henderson, 779 F.2d at 1423.
Finally, as to the fifth factor, alternative sanctions would likely be futile. Plaintiff's lack of filings since the May 2, 2022, filing of his April 30, 2022, letter, as well as mail returned to the Court as undeliverable, suggest that “[a]n order to show cause why dismissal is not warranted or an order imposing sanctions would only find itself taking a round trip tour through the United States mail.” Carey, 856 F.2d at 1441 (where court could not contact plaintiff, dismissal and not lesser sanction was appropriate). In the Court's April 12, 2022, Order, the Court reminded Plaintiff of his obligations to submit a timely notice of change of address. (Doc. 38 at 2) Plaintiff has shown his ability to comply with the requirement to notify the court of a change of address, as demonstrated by his September 30, 2021, and May 2, 2022, filings notifying the Court of a change of address. (Docs. 20, 39) However, Plaintiff's May 2, 2022, filing did not provide the Court with an updated, accurate address where Plaintiff could receive mail, given that mail sent to Plaintiff was returned as undeliverable. (Doc. 42) It is not the Court's duty to determine Plaintiff's new mailing address. See Carey, 856 F.2d at 1441. Plaintiff has had over three months since his May 2, 2022, filing to notify the Court of his current address but has not done so. Plaintiff has not made any filings in this matter since May 2, 2022.
Further, the Court has warned Plaintiff about the possibility of the dismissal of Plaintiff's lawsuit. On multiple occasions the Court has reminded Plaintiff that if “Plaintiff fails to timely comply with every provision of' the Court's Orders, including warnings, “the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court)[.]” (See Doc. 21 at 13; Doc. 36 at 2) In the Court's October 5, 2021, Screening and Service Order, the Court warned Plaintiff that:
Plaintiff must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.(Doc. 21 at 12)
Under the circumstances before the Court, the Court is not convinced that a less strict sanction than dismissal would be effective. Because Plaintiff has failed to prosecute his lawsuit, the Court may use its discretion to dismiss this lawsuit and it is recommended that the Court do so. See Link, 370 U.S. at 630-31.
III. CONCLUSION
Because Plaintiff has not served Defendant Morales, has not shown adequate cause for his failure to do so, and the record does not establish adequate cause to grant Plaintiff an extension of time for service, it is recommended that Plaintiff's claims against unserved Defendant Morales be dismissed for failure to serve pursuant to Fed.R.Civ.P. 4(m). Because Plaintiff has not notified the Court of his change of address as ordered, it is recommended that this matter be dismissed without prejudice for failure to prosecute and failure to follow the Court's Order regarding filing a notice of change of address.
Accordingly, IT IS RECOMMENDED that Defendant Morales be dismissed without prejudice pursuant to Fed.R.Civ.P. 4(m) for Plaintiff's failure to timely serve Defendant Morales.
IT IS FURTHER RECOMMENDED that this matter be dismissed without prejudice for failure to prosecute and failure to follow this Court's Order in that Plaintiff has failed to notify the Court of Plaintiff's change of address.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.