Johnson #377401 v. Sheridan et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Demarcus Montroy Johnson,
Plaintiff,
v.
Jerry Sheridan, et al.,
Defendants.
No. CV-25-02963-PHX-GMS (MTM)
REPORT AND RECOMMENDATION
TO THE HONORABLE G. MURRAY SNOW, SENIOR UNITED STATES
DISTRICT JUDGE:
Plaintiff Demarcus Montroy Johnson, who is confined in a Maricopa County Jail,
has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983. (Doc. 1.) The Court
screened the matter, ordered Defendant Casares to answer Count Two of the Complaint,
and dismissed Count One and the remaining Defendants without prejudice. (Doc. 5.) In the
same Order, the Court required Plaintiff to “file and serve a notice of a change of address
in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure.” (Id.) The Court
stated, “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.” (Id.)
On September 19, 2025, the record reflected that mail sent from the Clerk of Court
to Plaintiff was returned as undeliverable stating, “Return to Sender – No Longer in
Custody.” (Doc. 7.) On September 24, 2025, the Court issued an Order requiring Plaintiff
to either (1) file a notice of change of address, or (2) show cause why this matter should
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not be dismissed for failure to prosecute in light of his failure to file a notice of change of
address. (Doc. 8.) On October 3, 2025 and again on October 8, 2025, mail from the Clerk
of Court to Plaintiff was returned as undeliverable stating “no longer in custody.” (Docs.
9, 10.) To date, Plaintiff has failed to comply with the Court’s Order and the time for doing
so has expired. The Court, therefore, will determine whether dismissal is appropriate.
Plaintiff has the general duty to prosecute this case. Fidelity Phila. Trust Co. v.
Pioche Mines Consol., Inc., 587 F.2d 27, 29 (9th Cir. 1978). In this regard, it is the duty of
a plaintiff who has filed a pro se action 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). Plaintiff’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 “[f]or failure of the
plaintiff to prosecute or to comply with these rules or any order of court, a defendant may
move for dismissal of an 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 Plaintiff’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)).
Here, the first and second factors favor dismissal. Plaintiff’s failure to participate
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meaningfully in this action or comply with Court Orders prevents this action from
proceeding, and neither the public’s interest in expeditious resolution of litigation nor the
Court’s need to manage its docket are served by allowing this action to continue. As to the
third factor, dismissal of the action for failure to prosecute rather than on the merits will
not prejudice Defendants. The fourth factor favoring adjudication on the merits weighs
against dismissal. See Wanderer v. Johnson, 910 F.2d 652, 656 (9th Cir. 1990) (“The first
two . . . factors favor the imposition of sanctions in most cases, while the fourth factor cuts
against a default or dismissal sanction.”)
The fifth and final factor requires the Court to consider whether a less drastic
alternative than dismissal is available. The Court already took the less drastic alternative
of issuing an Order to Show Cause before dismissing this action outright, and Plaintiff
failed to show cause why this action should not be dismissed. It therefore appears that
Plaintiff has lost interest in prosecuting this action. Additionally, because it appears that
Plaintiff is no longer receiving mail at his last known address, any further warnings are
bound to be futile. See Carey, 856 F.2d at 1441 (“An order to show cause why dismissal is
not warranted . . . would only find itself taking a round trip tour through the United States
mail.”). Realistically, the only less drastic option remaining is dismissal without prejudice.
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.” The Court
will therefore dismiss this action without prejudice for failure to prosecute pursuant to Rule
41(b). See Ash v. Cvetkov, 739 F.2d 493, 497 (9th Cir. 1984) (“dismissal without prejudice
is a more easily justified sanction for failure to prosecute”).
Accordingly,
IT IS RECOMMENDED that Plaintiff’s Complaint and this action be dismissed
without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
This recommendation is not an order that is immediately appealable to the Ninth
Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rules of Appellate
Procedure, Fed. R. App. P. 4(a)(1), should not be filed until entry of the district court’s
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judgment. Pursuant to 28 U.S.C. § 636(b), any party may file and serve written objections
within 14 days after being served with a copy of this Report and Recommendation.
Pursuant to Rule 7.2(e)(3), Local Rules of Civil Procedure, objections to the Report and
Recommendation may not exceed ten (10) pages. If objections are not timely filed, the
party’s right to de novo review by the District Judge is waived. See U.S. v. Reyna-Tapia,
328 F.3d 1114, 1121 (9th Cir. 2003).
Dated this 20th day of October, 2025.
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