Lewis #060567 v. Thornell et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Charles Lewis,
Plaintiff,
v.
Ryan Thornell, et al.,
Defendants.
No. CV-24-01252-PHX-SHD (ASB)
REPORT AND RECOMMENDATION
TO THE HONORABLE SHARAD H. DESAI, UNITED STATES DISTRICT
JUDGE:
Pending before the Court and ripe for disposition are Defendants’ Motion to Dismiss
for Failure to Prosecute (Doc. 25) and Defendants’ Motion to Extend Dispositive Motion
Deadline (Second Request) (Doc. 26). Plaintiff opposes dismissal. (Doc. 28.) Defendants
replied, arguing dismissal is warranted and alternatively requesting that Plaintiff be
compelled to serve his initial disclosure statement. (Doc. 29.) For the reasons described
below, undersigned recommends the Motion to Dismiss be denied. Consequently,
undersigned will enter a stay of deadlines and address same if the Court adopts this
Recommendation.
I. BACKGROUND
Plaintiff filed the instant action on May 28, 2026. (Doc. 1.) After his original
Complaint was dismissed with leave to amend, he filed a one-count Amended Complaint1
1 In the single count of the Amended Complaint, Plaintiff broadly alleges that
Defendants had a custom and practice of unnecessarily delaying medical treatment for
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on August 22, 2024. (Docs. 5, 8.) After the Court’s screening Order, the remaining
Defendants are NaphCare LLP and Centurion of Arizona (collectively, “Defendants”).
(See Doc. 8 at 8-9.) Defendants filed an Answer on January 6, 2025, and the Court issued
a Scheduling Order on January 13, 2025. (Docs. 14, 16.) In its Scheduling Order, the
Court specifically ordered the parties to make their initial disclosures under Rule 26(a) of
the Federal Rules of Civil Procedure by February 10, 2025. (Doc. 16 at 2.) In so doing,
the Court acknowledged that Rule 26 “exempt[s] prisoner civil rights cases, such as this
one, from the requirements of discovery plans, disclosures, etc.” (Id. n.2.) However, the
Court found “that continuing to require the parties to comply with the provisions of Rule
26(a) will benefit the parties…” (Id.) Thus, the Court specifically ordered the parties to
engage in mutual initial disclosures, despite the exemption language of Rule 26(a). (See
id. at 2.)
On Defendants’ unopposed motion, the dispositive motions deadline was extended
to January 9, 2026. (Docs. 22, 24.) On January 9, 2026, Defendants filed the two instant
motions. First, Defendants move to dismiss this case because Plaintiff failed to notify the
Court of his change of address and because Plaintiff “has taken no action to prosecute this
case since service was completed on November 12, 2024.” (Doc. 25 at 1-2.) Second,
Defendants move to extend the dispositive motion deadline to 14 days past the Court’s
Order on their dismissal motion. (Doc. 26.)
After Defendants filed their instant Motions, the Court issued an Order on January
14, 2026. (Doc. 27.) In its Order, the Court noted “that the certificate of service for
Defendants’ motions indicates service upon Plaintiff’s address on record with the Court,
even though Defendants have information through the Arizona Department of Corrections’
website that Plaintiff has moved.” (Id. at 1.) The Court observed that Defendants had no
obligation to research Plaintiff’s address and reminded Plaintiff of his obligation to comply
with Court Orders. (Id. at 1-2.) As a one-time courtesy, the Court directed the Clerk of
Court to transmit a copy of its Order to Plaintiff at his new address and affirmed its prior
prisoners, in violation of the Eighth Amendment. (Doc. 8 at 8-9.)
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Orders. (Id. at 2.)
On January 22, 2026, Plaintiff filed an “Answer to Court’s Order filed 1/15/26 (Doc
27) and Change of Address Notification.” (Doc. 28.) In that filing, Plaintiff contends he
is “exempt from initial disclosures” under Rule 26 and Defendants did not follow the
proper procedure to seek dismissal. (Id. at 1.) Plaintiff continues that he is “exempt from
the discovery process unless the Defendant’s (sic) requested something specific.” (Id. at
2.) Plaintiff further avers that he was transferred from one ADCRR facility to another, and
he “was unaware this was considered a change of address.” (Id. at 1-2.) Thus, Plaintiff
argues, Defendants’ “motion” should be denied. (Id. at 2.) Given the context, the Court
construes the filing as Plaintiff’s response to the Motion to Dismiss, even though Plaintiff
styled it as his “Answer” to this Court’s Order.
On January 28, 2026, Defendants filed their Reply in support of their Motion to
Dismiss. (Doc. 29.) Defendants maintain that the issue before the Court “is not a discovery
dispute,” but rather hinges on “Plaintiff’s failure to comply with a clear and unambiguous
court-ordered deadline.” (Id. at 1.) Defendants further argue that Plaintiff did not update
his address and did not actively litigate this case for over a year. (Id. at 2.) Thus,
Defendants argue the case should be dismissed. (Id.) Alternatively, Defendants ask that
Plaintiff be compelled “to immediately serve his Initial Disclosure Statement” and “file the
required notice of change of address,” and Defendants request they should then be allowed
“30 additional days following service of Plaintiff’s initial disclosure statement to file their
dispositive motion.”
II. MOTION TO DISMISS
A. Legal Standard
Pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, a district court may
dismiss an action due to a plaintiff’s failure to prosecute or to comply with court orders.
See Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962) (a court’s authority to dismiss
for lack of prosecution is necessary to prevent undue delays in the disposition of pending
cases and to avoid congestion in the calendars of the district courts); Ferdik v. Bonzelet,
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963 F.2d 1258, 1260 (1992) (a district court may dismiss an action for failure to comply
with any order of the court).
Rule 83.3(d) of the Local Rules of Civil Procedure (“LRCiv”), Rules of Practice of
the U.S. District Court for the District of Arizona, requires that an “unrepresented party
must file a notice of a name or address change… 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.”
Before dismissal for failure to prosecute, the Court must consider 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.”
Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 890 (9th Cir. 2019); Pagtalunan
v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002).
B. Analysis
Here, two provisions of the Court’s Orders are at issue. First, Plaintiff was ordered
to promptly notify the Court of any change in address and he was specifically warned that
failure to comply with LRCiv 83.3 may result in dismissal of his action. (Doc. 9 at 9.) “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).
Second, Plaintiff was ordered to provide an initial disclosure under Rule 26, and the Court
specifically found that requiring that disclosures were warranted, despite the exemption in
the language of Rule 26. (Doc. 16 at 2.) The Court went on to describe various discovery
vehicles and provide deadlines for all parties to follow. (Id. at 2-4.) Despite that Order,
Plaintiff somehow maintains in his most recent filing that he is exempt from not only initial
disclosures, but “the discovery process.” (Doc. 28 at 2.) Plaintiff is incorrect, as the
Court’s Scheduling Order in fact indicated the opposite. (See Doc. 16.)
Against this backdrop, the Court considers the dismissal factors. Under the instant
circumstances, the first and second factors favor dismissal. See Ferdik, 963 F.2d at 1261.
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Plaintiff’s failure to participate in the discovery process for a year of this litigation has
prevented this case from proceeding in a timely manner. See id. (noting the negative impact
on court resources with matters idling on the docket). In this case, Plaintiff has maintained
he is under no obligation to participate in discovery, which is incorrect, and he failed to
follow this Court’s Orders regarding discovery and filing an address change notice. Under
the third factor, “the failure to prosecute diligently is sufficient by itself to justify a
dismissal, even in the absence of a showing of actual prejudice to the defendant from the
failure.” In re Eisen, 31 F.3d 1447, 1452 (9th Cir. 1994) (internal quotation omitted). The
Court notes, however, that Defendants did not bring Plaintiff’s failure to engage in
discovery until the day their dispositive motion was due, which indicates Defendants were
aware of the issue before that date and did not seek court intervention to move the case
forward in a timely fashion. The third factor is neutral. The fourth factor weighs against
dismissal because public policy favors disposition of cases on their merits. See Pagtalunan
v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). Lastly, less available sanctions have not
been attempted, which weighs against dismissal in this case.
In sum, the five-factor analysis weighs against dismissal. Therefore, undersigned
will recommend that the Motion to Dismiss be denied.
III. CASE MANAGEMENT/DEADLINES
Pending the Court’s ruling on undersigned’s Recommendation, undersigned will
stay the deadlines in this case; thus, Defendants’ Motion to Extend Dispositive Motion
Deadline (Second Request) will be granted in part. Undersigned grants in part that Motion
because good cause appears under Rule 16 of the Federal Rules of Civil Procedure.
Plaintiff is further deemed to have consented to the granting of the Motion by his lack of
response thereto, pursuant to LRCiv 7.2(i).
IV. PLAINTIFF’S CHANGE OF ADDRESS
In its Screening Order, the Court ordered Plaintiff to timely notify the Court of any
change of address and not to submit that with other requests for relief. (See Doc. 9 at 9.)
Plaintiff nonetheless filed his “Answer to Court’s Order filed 1/15/26 (Doc 27) and Change
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of Address Notification,” in which he embedded a notice of change of address within his
response to a dismissal motion. (See Doc. 28 at 2.) That “notice” did not comply with the
Court’s Order (see Doc. 9 at 9) and is rejected. Indeed, because it was not compliant, the
Clerk of Court did not register the change, and Plaintiff’s address of record with this Court
remains at the Meadows Unit. This illustrates the importance of compliance with the
Court’s Orders.
This Court has already affirmed its prior Orders. (Doc. 27 at 2.) The Court will
again order Plaintiff to properly file a notice of change of address in accordance with
LRCiv 83.3. Plaintiff’s notice of change of address shall be filed within 10 days of the
date this Order is issued, or the Court may dismiss this case without prior notice to Plaintiff.
As a courtesy to Plaintiff, the Court will direct the Clerk of Court to transmit a copy of this
Report and Recommendation/Order to Plaintiff to the email address indicated in Plaintiff’s
most recent filing. However, this will be the second time the Court is transmitting its
Orders to Plaintiff as a courtesy (see Doc. 27 at 2); further courtesies will not be extended
in light of the Court’s Orders regarding compliance with its Rules and Orders.
RECOMMENDATION
For the foregoing reasons,
IT IS RECOMMENDED that Defendants’ Motion to Dismiss for Failure to
Prosecute (Doc. 25) be DENIED.
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. The
parties shall have 14 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(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response
to the objections.
Failure to timely file objections to the Magistrate Judge’s Report and
Recommendation may result in the acceptance of the Report and Recommendation by the
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district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the
Magistrate Judge will be considered a waiver of a party’s right to appellate review of the
findings of fact in an order of judgment entered pursuant to the Magistrate Judge’s
recommendation. See Fed. R. Civ. P. 72.
ORDER
IT IS ORDERED granting in part Defendants’ Motion to Extend Dispositive
Motion Deadline (Second Request) (Doc. 26). The deadlines set in the Scheduling Orders
(Docs. 16, 24) are stayed pending a ruling on the Recommendation above. Upon that
ruling, undersigned will address deadlines as appropriate.
IT IS FURTHER ORDERED that no later than 10 days from the date this Order
is filed, Plaintiff shall file a notice of change of address that complies with LRCiv 83.3.
Failure to timely comply with this Order may result in dismissal without further notice to
Plaintiff. As a courtesy to Plaintiff, the Court will direct the Clerk of Court to transmit a
copy of this Report and Recommendation/Order to Plaintiff to the email address indicated
in Plaintiff’s most recent filing (Eym_Cook_sender@azcorrections.gov).
Dated this 19th day of February, 2026.
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