Free Order on Motion to Dismiss Case/Lack of Jurisdiction - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 Charles Ryan, et al., 13 Defendants. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This is a civil rights action brought by a state prisoner. vs. Lorenzo Cruz Falco, Plaintiff, ) ) ) ) ) ) ) ) ) ) ) ) No. CV 03-1940-PHX-EHC (JRI) ORDER IN THE UNITED S TATES DIS TRICT COURT FOR THE DIS TRICT OF ARIZONA

LMH

Defendant s have twice

moved to dismiss Count II as moot (Dkt . ##68, 73). Plaintiff has not responded to either motion and mail sent to him has been returned. The Court will dismiss the action without prejudice for failure to prosecute, and deny Defendants' motions as moot. I. Procedural History In 2003, Plaintiff filed this action claiming that the conditions of confinement in Special M anagement Unit II violated due process, the Eighth Amendment, and were retaliatory. On February 14, 2006, the Court addressed cross-motions for s ummary

judgment and resolved all claims except for the part of Count II about limitations on Plaintiff's ability t o exercise, for which Plaintiff sought declaratory and injunctive relief (Doc. #67). Two weeks after the Court's decision, Defendants moved to dismiss, contending that Plaintiff's claim was moot because he was now permitted to exercise for six hours each

Case 2:03-cv-01940-EHC-JRI

Document 77

Filed 08/03/2006

Page 1 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

w eek instead of only three (Doc. #68). On M arch 6, 2006, Plaintiff was notified of his right s and obligations to respond to the motion (Doc. #69), but he declined to respond. Not long thereafter, on M ay 2, 2006, Plaintiff was released from prison. On June 12, 2006, the Court entered an Order withdrawing the reference to the magistrate judge (Doc. #71). This Order w as mailed to Plaintiff but returned as

undeliverable (Doc. #72). On June 26, 2006, Defendants moved to dismiss Count II as moot in light of Plaintiff's release (Doc. #73). The Court again notified Plaintiff of his rights and obligat ions to respond (Doc. #74). One would have expected this Order to be returned in the mail, but it was not; however, the subsequent Order withdrawing the reference was returned (Doc. ##75-76). Plaintiff did not respond to Defendants' second motion. II. Analysis It is undisputed t hat P laintiff was released from prison M ay 2, 2006. Since that time two months ago, Plaintiff has not notified the Court of his new address, despite his obligation t o do so. Plaintiff was notified of this obligation at least three times: (1) in the ins t ructions accompanying the form for the civil rights complaint; (2) in the notice of assignment is s ued immediately after he filed his action (Doc. #2), and (3) in the Court's screening order (Doc. #4). He als o has failed to respond to Defendants' motions, despite notification of his rights and obligations to do so. interest in prosecuting this action. Before dis mis s al for lack of prosecution, the court must weigh (1) the public's interest in expedit ious res olution of litigation, (2) the court's need to manage its docket, (3) the risk of prejudice to the defendants, (4) the public p olicy favoring disposition of cases on t heir merits, and (5) the availability of less drastic sanctions. Henderson v. The Court concludes that he has lost

Duncan, 779 F.2d 1421, 1423 (9t h Cir. 1986). These factors do not favor Plaintiff. The interests in judicial economy reflected in the first t w o factors have significant weight favoring dismissal of the action. On the third factor, there is no risk of prejudice to The fourth factor of favoring

Defendants by dismissal, w hich they have already sought.

disposition of cases on their merits weighs in favor of Plaintiff but only slightly so because -2Document 77 Filed 08/03/2006

Case 2:03-cv-01940-EHC-JRI

Page 2 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

P laint iff has apparently lost interest in his case. For the fifth factor, there no less dras t ic sanction than dismissal without pr ejudice, as the Court could alternately rule on the merits of the motions that are unrebutted and Plaintiff cannot be contacted under these circumstances. Thus, the five-factor analysis weighs in favor of dismissal. dismiss the remaining part of Count II without prejudice. IT IS ORDERED: (1) Count II regarding the limitations on Plaintiff's ability to exercise is dismissed without prejudice. (2) Defendants' M otions to Dismiss Count II as M oot (Doc. ##68, 73) are denied as moot. (3) T he Clerk of Court is directed to enter a judgment of dismissal without prejudice. DATED this 1st day of August, 2006. T he Court will

Case 2:03-cv-01940-EHC-JRI

-3Document 77 Filed 08/03/2006

Page 3 of 3