2:24-cv-01252•Lewis #060567 v. Thornell et al
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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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Charles Lewis, Plaintiff, v. Ryan Thornell, et al., Defendants. No. CV-24-01252-PHX-SHD (ASB) REPORT AND RECOMMENDATION TO THE HONORABLE SHARAD H. DESAI, UNITED STATES DISTRICT JUDGE: Pending before the Court and ripe for disposition are Defendants’ Motion to Dismiss for Failure to Prosecute (Doc. 25) and Defendants’ Motion to Extend Dispositive Motion Deadline (Second Request) (Doc. 26). Plaintiff opposes dismissal. (Doc. 28.) Defendants replied, arguing dismissal is warranted and alternatively requesting that Plaintiff be compelled to serve his initial disclosure statement. (Doc. 29.) For the reasons described below, undersigned recommends the Motion to Dismiss be denied. Consequently, undersigned will enter a stay of deadlines and address same if the Court adopts this Recommendation. I. BACKGROUND Plaintiff filed the instant action on May 28, 2026. (Doc. 1.) After his original Complaint was dismissed with leave to amend, he filed a one-count Amended Complaint1 1 In the single count of the Amended Complaint, Plaintiff broadly alleges that Defendants had a custom and practice of unnecessarily delaying medical treatment for Case 2:24-cv-01252-SHD-ASB Document 30 Filed 02/19/26 Page 1 of 7
- 2 - 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 on August 22, 2024. (Docs. 5, 8.) After the Court’s screening Order, the remaining Defendants are NaphCare LLP and Centurion of Arizona (collectively, “Defendants”). (See Doc. 8 at 8-9.) Defendants filed an Answer on January 6, 2025, and the Court issued a Scheduling Order on January 13, 2025. (Docs. 14, 16.) In its Scheduling Order, the Court specifically ordered the parties to make their initial disclosures under Rule 26(a) of the Federal Rules of Civil Procedure by February 10, 2025. (Doc. 16 at 2.) In so doing, the Court acknowledged that Rule 26 “exempt[s] prisoner civil rights cases, such as this one, from the requirements of discovery plans, disclosures, etc.” (Id. n.2.) However, the Court found “that continuing to require the parties to comply with the provisions of Rule 26(a) will benefit the parties…” (Id.) Thus, the Court specifically ordered the parties to engage in mutual initial disclosures, despite the exemption language of Rule 26(a). (See id. at 2.) On Defendants’ unopposed motion, the dispositive motions deadline was extended to January 9, 2026. (Docs. 22, 24.) On January 9, 2026, Defendants filed the two instant motions. First, Defendants move to dismiss this case because Plaintiff failed to notify the Court of his change of address and because Plaintiff “has taken no action to prosecute this case since service was completed on November 12, 2024.” (Doc. 25 at 1-2.) Second, Defendants move to extend the dispositive motion deadline to 14 days past the Court’s Order on their dismissal motion. (Doc. 26.) After Defendants filed their instant Motions, the Court issued an Order on January 14, 2026. (Doc. 27.) In its Order, the Court noted “that the certificate of service for Defendants’ motions indicates service upon Plaintiff’s address on record with the Court, even though Defendants have information through the Arizona Department of Corrections’ website that Plaintiff has moved.” (Id. at 1.) The Court observed that Defendants had no obligation to research Plaintiff’s address and reminded Plaintiff of his obligation to comply with Court Orders. (Id. at 1-2.) As a one-time courtesy, the Court directed the Clerk of Court to transmit a copy of its Order to Plaintiff at his new address and affirmed its prior prisoners, in violation of the Eighth Amendment. (Doc. 8 at 8-9.) Case 2:24-cv-01252-SHD-ASB Document 30 Filed 02/19/26 Page 2 of 7
- 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 Orders. (Id. at 2.) On January 22, 2026, Plaintiff filed an “Answer to Court’s Order filed 1/15/26 (Doc 27) and Change of Address Notification.” (Doc. 28.) In that filing, Plaintiff contends he is “exempt from initial disclosures” under Rule 26 and Defendants did not follow the proper procedure to seek dismissal. (Id. at 1.) Plaintiff continues that he is “exempt from the discovery process unless the Defendant’s (sic) requested something specific.” (Id. at 2.) Plaintiff further avers that he was transferred from one ADCRR facility to another, and he “was unaware this was considered a change of address.” (Id. at 1-2.) Thus, Plaintiff argues, Defendants’ “motion” should be denied. (Id. at 2.) Given the context, the Court construes the filing as Plaintiff’s response to the Motion to Dismiss, even though Plaintiff styled it as his “Answer” to this Court’s Order. On January 28, 2026, Defendants filed their Reply in support of their Motion to Dismiss. (Doc. 29.) Defendants maintain that the issue before the Court “is not a discovery dispute,” but rather hinges on “Plaintiff’s failure to comply with a clear and unambiguous court-ordered deadline.” (Id. at 1.) Defendants further argue that Plaintiff did not update his address and did not actively litigate this case for over a year. (Id. at 2.) Thus, Defendants argue the case should be dismissed. (Id.) Alternatively, Defendants ask that Plaintiff be compelled “to immediately serve his Initial Disclosure Statement” and “file the required notice of change of address,” and Defendants request they should then be allowed “30 additional days following service of Plaintiff’s initial disclosure statement to file their dispositive motion.” II. MOTION TO DISMISS A. Legal Standard Pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, a district court may dismiss an action due to a plaintiff’s failure to prosecute or to comply with court orders. See Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962) (a court’s authority to dismiss for lack of prosecution is necessary to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the district courts); Ferdik v. Bonzelet, Case 2:24-cv-01252-SHD-ASB Document 30 Filed 02/19/26 Page 3 of 7
- 4 - 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 28 963 F.2d 1258, 1260 (1992) (a district court may dismiss an action for failure to comply with any order of the court). Rule 83.3(d) of the Local Rules of Civil Procedure (“LRCiv”), Rules of Practice of the U.S. District Court for the District of Arizona, requires that an “unrepresented party must file a notice of a name or address change… no later than fourteen (14) days before the effective date of the change, except that an unrepresented party who is incarcerated must submit a notice within seven (7) days after the effective date of the change.” Before dismissal for failure to prosecute, the Court must consider 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.” Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884, 890 (9th Cir. 2019); Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002). B. Analysis Here, two provisions of the Court’s Orders are at issue. First, Plaintiff was ordered to promptly notify the Court of any change in address and he was specifically warned that failure to comply with LRCiv 83.3 may result in dismissal of his action. (Doc. 9 at 9.) “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) (per curiam). Second, Plaintiff was ordered to provide an initial disclosure under Rule 26, and the Court specifically found that requiring that disclosures were warranted, despite the exemption in the language of Rule 26. (Doc. 16 at 2.) The Court went on to describe various discovery vehicles and provide deadlines for all parties to follow. (Id. at 2-4.) Despite that Order, Plaintiff somehow maintains in his most recent filing that he is exempt from not only initial disclosures, but “the discovery process.” (Doc. 28 at 2.) Plaintiff is incorrect, as the Court’s Scheduling Order in fact indicated the opposite. (See Doc. 16.) Against this backdrop, the Court considers the dismissal factors. Under the instant circumstances, the first and second factors favor dismissal. See Ferdik, 963 F.2d at 1261. Case 2:24-cv-01252-SHD-ASB Document 30 Filed 02/19/26 Page 4 of 7
- 5 - 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 Plaintiff’s failure to participate in the discovery process for a year of this litigation has prevented this case from proceeding in a timely manner. See id. (noting the negative impact on court resources with matters idling on the docket). In this case, Plaintiff has maintained he is under no obligation to participate in discovery, which is incorrect, and he failed to follow this Court’s Orders regarding discovery and filing an address change notice. Under the third factor, “the failure to prosecute diligently is sufficient by itself to justify a dismissal, even in the absence of a showing of actual prejudice to the defendant from the failure.” In re Eisen, 31 F.3d 1447, 1452 (9th Cir. 1994) (internal quotation omitted). The Court notes, however, that Defendants did not bring Plaintiff’s failure to engage in discovery until the day their dispositive motion was due, which indicates Defendants were aware of the issue before that date and did not seek court intervention to move the case forward in a timely fashion. The third factor is neutral. The fourth factor weighs against dismissal because public policy favors disposition of cases on their merits. See Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002). Lastly, less available sanctions have not been attempted, which weighs against dismissal in this case. In sum, the five-factor analysis weighs against dismissal. Therefore, undersigned will recommend that the Motion to Dismiss be denied. III. CASE MANAGEMENT/DEADLINES Pending the Court’s ruling on undersigned’s Recommendation, undersigned will stay the deadlines in this case; thus, Defendants’ Motion to Extend Dispositive Motion Deadline (Second Request) will be granted in part. Undersigned grants in part that Motion because good cause appears under Rule 16 of the Federal Rules of Civil Procedure. Plaintiff is further deemed to have consented to the granting of the Motion by his lack of response thereto, pursuant to LRCiv 7.2(i). IV. PLAINTIFF’S CHANGE OF ADDRESS In its Screening Order, the Court ordered Plaintiff to timely notify the Court of any change of address and not to submit that with other requests for relief. (See Doc. 9 at 9.) Plaintiff nonetheless filed his “Answer to Court’s Order filed 1/15/26 (Doc 27) and Change Case 2:24-cv-01252-SHD-ASB Document 30 Filed 02/19/26 Page 5 of 7
- 6 - 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 of Address Notification,” in which he embedded a notice of change of address within his response to a dismissal motion. (See Doc. 28 at 2.) That “notice” did not comply with the Court’s Order (see Doc. 9 at 9) and is rejected. Indeed, because it was not compliant, the Clerk of Court did not register the change, and Plaintiff’s address of record with this Court remains at the Meadows Unit. This illustrates the importance of compliance with the Court’s Orders. This Court has already affirmed its prior Orders. (Doc. 27 at 2.) The Court will again order Plaintiff to properly file a notice of change of address in accordance with LRCiv 83.3. Plaintiff’s notice of change of address shall be filed within 10 days of the date this Order is issued, or the Court may dismiss this case without prior notice to Plaintiff. As a courtesy to Plaintiff, the Court will direct the Clerk of Court to transmit a copy of this Report and Recommendation/Order to Plaintiff to the email address indicated in Plaintiff’s most recent filing. However, this will be the second time the Court is transmitting its Orders to Plaintiff as a courtesy (see Doc. 27 at 2); further courtesies will not be extended in light of the Court’s Orders regarding compliance with its Rules and Orders. RECOMMENDATION For the foregoing reasons, IT IS RECOMMENDED that Defendants’ Motion to Dismiss for Failure to Prosecute (Doc. 25) be DENIED. 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. The parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections. Failure to timely file objections to the Magistrate Judge’s Report and Recommendation may result in the acceptance of the Report and Recommendation by the Case 2:24-cv-01252-SHD-ASB Document 30 Filed 02/19/26 Page 6 of 7
- 7 - 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 district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party’s right to appellate review of the findings of fact in an order of judgment entered pursuant to the Magistrate Judge’s recommendation. See Fed. R. Civ. P. 72. ORDER IT IS ORDERED granting in part Defendants’ Motion to Extend Dispositive Motion Deadline (Second Request) (Doc. 26). The deadlines set in the Scheduling Orders (Docs. 16, 24) are stayed pending a ruling on the Recommendation above. Upon that ruling, undersigned will address deadlines as appropriate. IT IS FURTHER ORDERED that no later than 10 days from the date this Order is filed, Plaintiff shall file a notice of change of address that complies with LRCiv 83.3. Failure to timely comply with this Order may result in dismissal without further notice to Plaintiff. As a courtesy to Plaintiff, the Court will direct the Clerk of Court to transmit a copy of this Report and Recommendation/Order to Plaintiff to the email address indicated in Plaintiff’s most recent filing (Eym_Cook_sender@azcorrections.gov). Dated this 19th day of February, 2026. Case 2:24-cv-01252-SHD-ASB Document 30 Filed 02/19/26 Page 7 of 7
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