Zepeda #162812 v. Penzone et al

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UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
Mario Alejandro Zepeda,
Plaintiff
-vs-
Paul Penzone, et al.,
Defendants.
CV-23-2273-PHX-ROS (JFM)
Report & Recommendation
This matter is before the undersigned magistrate judge on referral for pretrial
proceedings pursuant to 28 U.S.C. § 636(b)(1). Because the appropriate resolution of this
matter is dispositive of claims or defenses, the undersigned proceeds by way of a Report
& Recommendation to the referring district judge, pursuant to 28 U.S.C. § 636(b)(1)(B).
Background - Plaintiff filed a pro se Civil Rights Complaint pursuant to 42 U.S.C.
§ 1983 on November 1, 2023 (Doc. 1). The current operative pleading is Plaintiff’s Second
Amended Complaint (Doc. 15), filed December 3, 2024. In that complaint, Plaintiff
adequately stated “ an Eighth Amendment medical care claim against Defendant Gregorio
in Count Two.” (Screening Order 6/24/25, Doc. 17 at 14.) Defendant was served and
answered on August 11, 2025 (Doc. 19). Discovery is now closed and Defendant has filed
a Motion for Summary Judgment (Doc. 71). The deadline for Plaintiff’s response to that
motion has been extended to April 13, 2026. (See Order 3/31/26, Doc. 83.)
Change of Address - In the Notice of Assignment (Doc. 4) entered and mailed to
Plaintiff on November 1, 2023, Plaintiff was warned he must file a Notice of Change of
Address if his address changes and that failure to comply would result in his case being
dismissed. Plaintiff has subsequently filed two notices of change of address. (See Docs. 5
(11/27/23), 9 (4/16/24).)
In February, 2026, mail from the Clerk to Plaintiff was returned undeliverable
Case 2:23-cv-02273-ROS Document 84 Filed 04/09/26 Page 1 of 4

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(Docs. 76,77) indicating that Plaintiff had been transferred to ASPC-Eagle Point and was
unable to receive mail. The address provided did not match the Arizona Department of
Corrections, Rehabilitation and Reentry (ADOCRR) website information, and the Court
directed Defendants to inquire with ADOCRR and report back. Defendants have done so
and report that Plaintiff is now at ASPC-Lewis, Rast Unit and is able to receive mail,
including emailed notice from the Court pursuant to General Order 23-19. Plaintiff’s
current address of record is at ASPC-Lewis Bachman Unit.
Consequently, on March 17, 2026 the Court issued an Order to Show Cause (Doc.
80) giving Plaintiff 14 days to either file a notice of change of address reflecting his current
address, or a response showing cause why the case should not be dismissed for failure to
prosecute. Copies of that Order were electronically sent by the Clerk of the Court to
Plaintiff’s address of record (Bachman Unit) and the address provided by Defendants
((Rast Unit). The deadline for a response expired on March 31, 2026, and Plaintiff has
neither responded to the OSC nor filed a notice of change of address.
Application of Law - Plaintiff has the general duty to prosecute this case. Fidelity
Philadelphia Trust Co. v. Pioche Mines Consolidated, 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 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 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 and to respond to the Court’s Order
constitutes failure to prosecute.
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
Case 2:23-cv-02273-ROS Document 84 Filed 04/09/26 Page 2 of 4

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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)). "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, the first, second, and third factors favor dismissal of this case. Plaintiff's
failure to keep the Court informed of his address prevents the case from proceeding in the
foreseeable future. The fourth factor, as always, weighs against dismissal. The fifth factor
requires the Court to consider whether a less drastic alternative is available. Without
Plaintiff's current address, however, certain alternatives are bound to be futile. Plaintiff
has appeared in forma pauperis, (see Order 4/4/24, Doc. 7) suggesting financial sanctions
would be futile. Any evidentiary or similar sanctions would be arbitrary, given the
pervasive nature of Plaintiff’s failing. Moreover, Plaintiff’s failure to even respond to the
Court’s Order suggests his noncompliance is willful and/or evidence of an intent to
abandon the case.
The Court finds that only one less drastic sanction is realistically available. 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 Court finds that a dismissal with prejudice would be unnecessarily harsh. The
Complaint and this action will therefore be dismissed without prejudice pursuant to Rule
41(b) of the Federal Rules of Civil Procedure.
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IT IS THEREFORE RECOMMENDED:
(A) The reference of this case to the magistrate judge be WITHDRAWN.
(B) Pursuant to Rule 41(b) of the Federal Rules of Civil Procedure this action be
DISMISSED WITHOUT PREJUDICE.
(C) The Clerk of the Court be directed to enter judgment accordingly.
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, 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: April 9, 2026
23-2273r RR 26 04 08 re Dismiss FTP NCA.docx
James F. Metcalf
United States Magistrate Judge
Case 2:23-cv-02273-ROS Document 84 Filed 04/09/26 Page 4 of 4