Dak v. Rosa et al

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UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
John Gatwich Dak,
Petitioner
-vs-
Luis Rosa, Jr., et al.,
Respondents.
CV-25-4215-PHX-MTL (JFM)
Report & Recommendation
on Petition for Writ of Habeas Corpus
and Order
On November 12, 2025, Petitioner filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241 (Doc. 1) asserting his continued detention by immigration
officials violates 8 U.S.C. § 1231(a)(6) as interpreted by Zadvydas v. Davis, 533 U.S. 678
(2001), and violates the Due Process Clause of the Fifth Amendment. Respondents have
filed a Response (Doc. 14) asserting Petitioner is properly detained pending removal to
Sudan, that his 2011 removal order remains in effect, and that his detention since March
25, 2025 is proper because travel documents have been requested from South Sudan and
Petitioner provides no good reason to believe they will not be issued.
Respondents appeared to have improperly attempted electronic service of
Petitioner’s copy of the Response and Respondents were required to serve it on him by
mail. (See Order 1/6/26, Doc. 18.) It was served by mail on January 7, 2026. A reply
was due within 30 days, or by Monday, February 9, 2026. No reply has been filed.
In the meantime, however, the Court’s Order (Doc. 18) was returned undeliverable
(Doc. 20) indicating that Petitioner was no longer in custody at his address of record. On
January 21, 2026, the Court issued an Order to Show Cause (Doc. 21) directing Petitioner
to either file a notice of change of address, or show cause why this case should not be
dismissed for failure to prosecute. Copies of that Order were to be sent to Petitioner at his
Case 2:25-cv-04215-MTL Document 25 Filed 03/02/26 Page 1 of 4

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address of record, as well as Petitioner’s place of detention in McFarland, California, as
reflected on the U.S. Immigration and Customs Enforcement Online Detainee Locator
System site, https://locator.ice.gov/odls/#/search. Petitioner’s copy of that Order sent to
his address of record was again returned undeliverable (Doc. 23).
The Clerk did not note on the docket the forwarding of a copy of the OSC to the
California address. Consequently, the Court ordered renewed forwarding of the Order to
Show Cause, and extended the time for Petitioner to respond through February 25, 2026.
(Order 2/12/26, Doc. 24.) Petitioner has not responded to the Order to Show Cause, and
his extended `time to do so has expired. Neither of the copies of the February 12 Order
sent to Petitioner has been returned.1
The matter is now ripe for consideration. 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.
“The authority of a court to dismiss sua sponte for lack of prosecution has generally
been considered an ‘inherent power,' governed not by rule or statute but by the control
necessarily vested in courts to manage their own affairs so as to achieve the orderly and
expeditious disposition of cases.” Link v. Wabash R. Co., 370 U.S. 626, 630-631 (1962).
“Accordingly, when circumstances make such action appropriate, a District Court may
dismiss a complaint for failure to prosecute even without affording notice of its intention
to do so or providing an adversary hearing before acting. Whether such an order can stand
on appeal depends not on power but on whether it was within the permissible range of the
court's discretion.” Id. at 633.
In determining whether an abuse of discretion has occurred, a number of factors are
relevant, including the plaintiff's diligence, the trial court's need to manage its docket, the
danger of prejudice to the party suffering the delay, the availability of alternate sanctions,
1 The U.S. Immigration and Customs Enforcement Website no longer lists Petitioner as a
detainee, using his A number origan (Sudan). See https://locator.ice.gov/odls/#/search.
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and the existence of warning to the party occasioning the delay. See, e.g., Hamilton v.
Neptune Orient Lines, Ltd., 811 F.2d 498, 499 (9th Cir.1987).
Despite having been given specific noticeof his obligation to file a notice of change
of address, and an order specifically directing him to do so, Petitioner has failed to keep
his current address on file with the Court. It is the duty of a party 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. 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 persistent failure to keep the Court informed of his new address
constitutes a failure to prosecute.
Petitioner has failed to prosecute this action, and dismissal is therefore within the
discretion of the Court. Link v. Wabash R. Co., supra. In the instant case, Petitioner
appears to have abandoned this action upon his relocation. Petitioner has had over four
weeks since his apparent relocation to file a notice of change of address. Further delay to
the Court and to Respondent is not warranted. Also, Petitioner has received adequate
warning of the potential of such action, and in light of Petitioner’s refusal to respond to
the Court, less onerous sanctions will be ineffective.
IT IS THEREFORE RECOMMENDED Petitioner's Petition for Writ of Habeas
Corpus (Doc. 1) be DISMISSED WITHOUT PREJUDICE for failure to prosecute.
IT IS ORDERED that a copy of this Report & Recommendation and Order be sent
to Petitioner at:
John Gatwich Dak
094-685-394
Golden State Annex
611 Frontage Rd.
McFarland, CA 93250
Case 2:25-cv-04215-MTL Document 25 Filed 03/02/26 Page 3 of 4

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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.”
Dated: February 27, 2026
25-4215r RR 26 02 09 on HC.docx
James F. Metcalf
United States Magistrate Judge
Case 2:25-cv-04215-MTL Document 25 Filed 03/02/26 Page 4 of 4