Anderson #221513 v. Thornell et al

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UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
Tyson Dell Anderson,
Plaintiff
-vs-
Ryan Thornell, et al.,
Defendants.
CV-25-1325-PHX-DJH (JFM)
Report & Recommendation
Plaintiff commenced this action by filing his Complaint (Doc. 1) on April 21, 2025.
Plaintiff asserts medical care claims (arising from Plaintiff’s psychiatric care) against 12
named defendants and one fictitiously named defendant. On August 22, 2025 the Court
ordered (Doc. 13) Plaintiff to complete and return packets for service on defendants.
Those service packets were to be returned within twenty-one days.
Plaintiff did not do so, and on September 24, 2025, Plaintiff was ordered to either
return his completed service packets or show cause why the case should not be dismissed
for failure to prosecute. (Order 9/24/25, Doc. 15.) Plaintiff responded (Doc. 17) asking
for an extension of 30 to 45 days, or until after his anticipated release on December 31,
2025, to allow him to gather the required information and to have access to a computer.
Given the time already allowed, and the expected ordinary delays following a
release, the Court was not inclined to delay until after release. Plaintiff was, however,
given through November 3, 2025 to provide his service packets. (Order 10/7/25, Doc. 17.)
Plaintiff was cautioned: “Plaintiff should not anticipate further extensions.”
Plaintiff did not comply, and on November 13, 2025 Plaintiff was ordered to
“either: (1) return completed service packets as previously ordered; or (2) file a response
to this order showing cause why this case should not be dismissed for failure to prosecute.”
(Order 11/13/25, Doc. 19.)
Case 2:25-cv-01325-DJH Document 22 Filed 12/09/25 Page 1 of 4

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To date Plaintiff has not done so, and the deadline for Plaintiff to respond to the
Order to Show Cause expired on November 20, 2025.1
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. Because dismissal is a harsh penalty, however, it is
appropriate only in extreme circumstances of unreasonable delay. Hernandez v. City of
El Monte, 138 F.3d 393, 400 (9th Cir. 1998).
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)). The appellate courts “may
affirm a dismissal where at least four factors support dismissal, or where at least three
factors ‘strongly’ support dismissal.” Hernandez, 138 F.3d at 399 (citations omitted). “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).
Here, this case has been effectively stopped from progressing in any manner since
August 22, 2025, the date of the Service Order (Doc. 13) due to Plaintiff’s failure to return
1 Plaintiff was transferred to a different prison unit, and his copy of the Order to Show
Cause was returned undeliverable on the next day. It was immediately resent to Plaintiff’s
new address on November 14, 2025 (Doc. 20). The undersigned has delayed issuing the
instant Report and Recommendation to ensure Plaintiff had an opportunity to respond.
Case 2:25-cv-01325-DJH Document 22 Filed 12/09/25 Page 2 of 4

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completed service packets, and such failure precludes a resolution of his claims on the
merits by forestalling service on Defendants. Thus the first, second, and fourth factors
call for dismissal. Regarding the third factor, Defendants will likely eventually suffer
prejudice from Plaintiff’s delays as a result of impacts on their ability to garner evidence
to support any defenses.
With regard to the fifth factor, less drastic sanctions, the courts consider whether
the court has discussed or tried alternatives, or warned the plaintiffs of the chance of
dismissal. Hernandez, 138 F.3d at 401. Here, Plaintiff has been warned in the service
Order (Doc. 13 at 15), the original Order to Show Cause (Doc. 15), the extension Order
(Doc. 17), and the current Order to Show Cause (Doc. 19) of possible dismissal of his case
for failure to return service packets. Despite those cautions, Plaintiff has failed to respond
to the Court, provide the service packets, or to seek extensions of time to do so. This
suggests that further admonitions or threats of litigation related sanctions are unlikely to
be effective. Given Plaintiff’s in forma pauperis status (see Order, Doc. 12, granting IFP
application), monetary sanctions are also unlikely to be effective. However, 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 undersigned finds that a dismissal with prejudice would be unnecessarily harsh,
and the lesser sanction of dismissing the complaint and action without prejudice is
appropriate.
IT IS THEREFORE RECOMMENDED:
(A) The reference of this case to the magistrate judge be WITHDRAWN.
(B) Plaintiff’s Complaint (Doc. 1) and this action be DISMISSED WITHOUT
PREJUDICE.
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
Case 2:25-cv-01325-DJH Document 22 Filed 12/09/25 Page 3 of 4

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Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72, 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. 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.”
Dated: December 9, 2025
25-1325r RR 25 12 08 re Dismiss FTP SvcPkts.docx
James F. Metcalf
United States Magistrate Judge
Case 2:25-cv-01325-DJH Document 22 Filed 12/09/25 Page 4 of 4