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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA

Randy Buck Hood, 

Plaintiff, 

v. 

Maricopa County Jails, et al., 

Defendants.

No. CV 15-01916-PHX-JJT (DMF)

REPORT AND 

RECOMMENDATION 

TO THE HONORABLE JOHN J. TUCHI: 

 This matter is before the undersigned on referral from the District Judge. Because 

a magistrate judge cannot decide a “matter dispositive of a claim or defense or a prisoner 

petition challenging the conditions of confinement,” Rule 72(b)(1), Federal Rules of Civil 

Procedure, the undersigned recommends as follows. 

 Plaintiff Randy Buck Hood filed a pro se civil rights Complaint pursuant to 42 

U.S.C. § 1983 on September 24, 2015. (Doc. 1.) At the time of filing, Plaintiff was 

confined in the Maricopa County SO – Fourth Avenue Jail in Phoenix, Arizona. On 

November 18, 2015, the Court granted Plaintiff’s Application to Proceed In Forma 

Pauperis (Doc. 5), and on January 20, 2016, the Court ordered (Doc. 8) Defendant Puma 

to answer Count I of Plaintiff’s First Amended Complaint. The Court’s Order at Doc. 8 

was mailed to Plaintiff on January 20, 2016, and was returned as undeliverable on 

February 1, 2016, due to Plaintiff being “no longer in custody.” (Doc. 9.) 

 Rule 83.3(d) of the Local Rules of Civil Procedure requires an unrepresented party 

who is incarcerated to file a notice of change of address within seven days after the 

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effective date of the change. LRCiv 83.3(d). The Court’s Notice of Assignment (Doc. 4) 

warned Plaintiff that failure to file a Notice of Change of Address can result in dismissal 

of the action. Also, Plaintiff was informed in the instructions accompanying the form 

complaint that he must immediately inform the Clerk of Court of a change of address or 

face possible dismissal. To date, Plaintiff has not notified the Court of his current 

address. 

 A district court has authority under Fed. R. Civ. P. 41(b) to sua sponte dismiss a 

plaintiff’s action for failure to prosecute or to comply with court orders. See Fed. R. Civ. 

P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 630 (1962) (court has “inherent power” 

to dismiss sua sponte for lack of prosecution); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 

(9th Cir. 1992) (holding that a district court may dismiss an action for failure to comply 

with any order of the court); see also Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995) (a 

district court may dismiss an action for failure to comply with a local rule). Plaintiff has 

a general duty to prosecute this case. Fid. Philadelphia Trust Co. v. Pioche Mines 

Consol., Inc., 587 F.2d 27, 29 (9th Cir. 1978). In this regard, it is pro se Plaintiff’s duty 

to keep the Court apprised of his 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) (per 

curiam). 

 The Court must weigh the following factors in determining whether Plaintiff’s 

failure to prosecute warrants dismissal of the case: “(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.” Id. 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 cuts against a default or 

dismissal sanction. Thus the key factors are prejudice and availability of lesser 

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sanctions.” Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990). 

 The first, second, and third factors favor dismissal in this case. Plaintiff’s failure 

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

foreseeable future. An order directing Plaintiff to show cause why dismissal was 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. 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 would be futile. Id. (noting that the court could not contact plaintiff to 

threaten him with some lesser sanction). 

 The Court finds that only one less drastic sanction is realistically available. Fed. 

R. Civ. P. 41(b) provides that a dismissal for failure to prosecute operates as an 

adjudication upon the merits “[u]nless the dismissal order states otherwise.” The Court 

finds that dismissal with prejudice would be unnecessarily harsh. Therefore, the Court 

recommends that this action be dismissed without prejudice pursuant to Fed. R. Civ. P. 

41(b). 

IT IS THEREFORE RECOMMENDED that Plaintiff’s Complaint (Doc. 1) 

and this action be dismissed without prejudice under Fed. R. Civ. P. 41(b). 

 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), Federal Rules 

of Appellate Procedure, should not be filed until entry of the District Court’s judgment. 

 Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have 

fourteen (14) days from the date of service of a copy of this recommendation within 

which to file specific written objections with the Court. Thereafter, the parties have 

fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2, 

Local Rules of Civil Procedure for the United States District Court for the District of 

Arizona, objections to the Report and Recommendation may not exceed seventeen (17) 

pages in length. 

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 Failure to timely file objections to any factual or legal determinations of the 

Magistrate Judge will be considered a waiver of a party’s right to de novo appellate 

consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th 

Cir. 2003) (en banc). Failure to timely file objections to any factual or legal 

determinations of the Magistrate Judge will constitute a waiver of a party’s right to 

appellate review of the findings of fact and conclusions of law in an order or judgment 

entered pursuant to the recommendations of the Magistrate Judge. 

 Dated this 19th day of February, 2016. 

Honorable Deborah M. Fine

United States Magistrate Judge

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