Report and Recommendation

JAMES F. METCALF, Magistrate Judge.

I. MATTER UNDER CONSIDERATION

Petitioner, incarcerated at the time in the Barchey Unit of the Arizona State Prison Lewis Complex at Buckeye, Arizona, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, on January 9, 2019 (Doc. 1). The Petition is concerning a prison disciplinary proceeding. Service was ordered on June 24, 2109 (Doc. 6).

On August 19, 2019, Respondents filed their Answer (Doc. 12), asserting mootness would result from Petitioner's release scheduled for August 29, 2019, that Petitioner failed to exhaust his state remedies, and the claims are without merit. Respondents were directed to provide an update on Petitioner's status and supplement their Answer to address various issues. (Order 8/19/19, Doc. 13.)

Respondents responded (Doc. 14), reporting that rather than being released on August 29, 2019, Petitioner was actually released on April 6, 2019. Petitioner has never filed a notice of change of address.

The Court noted that none of the Court's mail to Petitioner at the prison has been returned undeliverable (see Order 6/24/19, Doc. 6; Order 7/18/19, Doc. 9; Order 8/2/19, Doc. 11; Order 8/19/19, Doc. 13), nor had any notice been provided by the prison pursuant to General Order 14-17, ¶ 5 ("If the prisoner refuses delivery or is no longer at the designated Unit, Unit staff will indicate the reason for non-delivery on the NEF and email it to the Court."). Upon filing, this case was made subject to the Court's Electronic Submission of Prisoner Documents Pilot Project, General Order 14-17, which provides for electronic service of Court orders to prisoners in certain units of the Arizona State Prison, including the Barchey Unit of ASPC-Lewis where Petitioner was confined. Counsel for Respondents were directed to inquire with prison authorities on the lack of such notice. Petitioner was also ordered to either file a notice of change of address or show cause for his failure to do so, and was given 14 days to do so. (Order 9/13/19, Doc. 16.)

On September 26, 2019, Respondents filed a Notice (Doc. 17) with supporting declaration, reporting that "that Lewis-Barchey Unit staff attempted to provide notice to the Court that Petitioner had been released from prison, however, they used an incorrect email address (the unattended NEF address) to notify the Court." (Id. at 2.) It appears this was a training error with the correctional officer responsible for receiving e-filings at Lewis complex.

Petitioner still has not filed a notice of change of address from his prison address.

The Petitioner's Petition is now ripe for dismissal for failure to prosecute. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.

II. FAILURE TO PROSECUTE

In the Notice of Assignment (Doc.2) issued to Petitioner on January 9, 2019 (the day the Petition was filed and prior to Petitioner's release), Petitioner was warned he must file a Notice of Change of Address if his address changes and that failure to comply would result in his case being dismissed. Similarly, the Order issued March 6, 2019 (Doc. 5), directing Petitioner to either file an in forma pauperis application or pay the filing fee, warned:

(Order 3/6/19, Doc. 5 at 2.) On March 18, 2018, Petitioner responded to that Order by paying the filing fee (Doc. 5).

The undersigned finds no reason to believe this Notice (Doc. 2) and Order (Doc. 5) were not received by Petitioner. Despite Petitioner's apparent release on April 6, 2019, and these warnings, Petitioner has not filed a notice of change of address.

Moreover, Petitioner has not responded to the Order to Show Cause issued on September 13, 2019 (Doc. 16). It appears that Petitioner has likely not received that Order, or the other Orders issued in the interim since his release (Order 6/24/19, Doc. 6 (service); Order 7/18/19, Doc. 9 (briefing schedule); Order 8/2/19, Doc. 11 (extending time for answer); and Order 8/19/19, Doc. 13 (supplement re release, etc.).) However, the failure to receive these other orders does not detract from Petitioner's failure to file a notice of change of address as required by the orders he did receive.

Petitioner has the general duty to prosecute this case. Fidelity Philadelphia Trust Co. v. Pioche Mines Consolidated, Inc., 587 F.2d 27, 29 (9th Cir. 1978). In this regard, it is the duty of a petitioner who has filed a pro se action to keep the Court apprised of his or her current address and to comply with the Court's orders in a timely fashion. See LRCiv 83.3(d). This Court does not have an affirmative obligation to locate Petitioner. "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). Petitioner's failure to keep the Court informed of his new address constitutes failure to prosecute.

Rule 41(b) of the Federal Rules of Civil Procedure provides that "[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action." In Link v. Wabash Railroad Co., 370 U.S. 626, 629-31 (1962), the Supreme Court recognized that a federal district court has the inherent power to dismiss a case sua sponte for failure to prosecute, even though the language of Rule 41(b) of the Federal Rules of Civil Procedure appears to require a motion from a party. Moreover, in appropriate circumstances, the Court may dismiss a complaint for failure to prosecute even without notice or hearing. Id. at 633.

In determining whether Petitioner's failure to prosecute warrants dismissal of the case, the Court must weigh the following 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." Carey, 856 F.2d 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 factor cuts against a default or dismissal sanction. Thus the key factors are prejudice and availability of lesser sanctions." Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir. 1990). This test is applicable to the dismissal of a habeas corpus petition for failure to prosecute. Davis, et al., Dismissal of habeas petition for failure to prosecute, 16A Fed. Proc., L. Ed. § 41:82 (September 2019).

Here, the first, second, and third factors favor dismissal of this case. Petitioner's failure to keep the Court informed of his address prevents the case from proceeding in the foreseeable future. The fourth factor, as always, weighs against dismissal. The fifth factor requires the Court to consider whether a less drastic alternative is available. Without Petitioner's current address, however, certain alternatives are bound to be futile. Here, as in Carey, "[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." 856 F.2d at 1441. Or, in this case, a round trip tour through the noticing process under Pilot Project under General Order 14-17.

The undersigned finds that only one less drastic sanction is realistically available. Rule 41(b) provides that a dismissal for failure to prosecute operates as an adjudication upon the merits "[u]nless the court in its order for dismissal otherwise specifies." In the instant case, the Court finds that a dismissal with prejudice would be unnecessarily harsh. The Petition and this action should therefore be dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.

III. CERTIFICATE OF APPEALABILITY

Ruling Required — Rule 11(a), Rules Governing Section 2254 Cases, requires that in habeas cases the "district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." Such certificates are required in cases concerning detention arising "out of process issued by a State court", or in a proceeding under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28 U.S.C. § 2253(c)(1).

Here, the Petition is brought pursuant to 28 U.S.C. § 2254, and challenges detention pursuant to a State court judgment. The recommendations if accepted will result in Petitioner's Petition being resolved adversely to Petitioner. Accordingly, a decision on a certificate of appealability is required.

Applicable Standards — The standard for issuing a certificate of appealability ("COA") is whether the applicant has "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000). "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id.

Standard Not Met — Assuming the recommendations herein are followed in the district court's judgment, that decision will be on procedural grounds. Under the reasoning set forth herein, jurists of reason would not find it debatable whether the district court was correct in its procedural ruling.

Accordingly, to the extent that the Court adopts this Report & Recommendation as to the Petition, a certificate of appealability should be denied.

IV. RECOMMENDATION

IT IS THEREFORE RECOMMENDED that the Petitioner's Petition for Writ of Habeas Corpus, filed January 9, 2019 (Doc. 1) be DISMISSED WITHOUT PREJUDICE for failure to prosecute.

IT IS FURTHER RECOMMENDED that, to the extent the foregoing findings and recommendations are adopted in the District Court's order, a Certificate of Appealability be DENIED.

V. EFFECT OF RECOMMENDATION

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.

However, 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. See also Rule 8(b), Rules Governing Section 2254 Proceedings. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).

In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that "[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages."