Conner #304527 v. Banks et al

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JL
WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Dayshaun Darion Conner,
Plaintiff,
v.
Unknown Banks, et al.,
Defendants.
No. CV-26-00559-PHX-JAT (JZB)
ORDER
On January 29, 2026, pro se Plaintiff Dayshaun Darion Conner, who was then
confined in the Arizona State Prison Complex-Yuma, filed a civil rights Complaint
pursuant to 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. In a
February 9, 2026 Order, the Court denied the deficient Application to Proceed with leave
to refile within 30 days.
On February 13, 2026, Plaintiff filed a new Application to Proceed In Forma
Pauperis (Doc. 6). On April 7, 2026, he filed a Motion Requesting Assistance (Doc. 9).
According to his Arizona Department of Corrections, Rehabilitation and Reentry
records, on May 1, 2026, Plaintiff was released from custody. Plaintiff has not filed a
notice of change of address or otherwise informed the Court of his whereabouts.
Rule 3.4 of the Local Rules of Civil Procedure requires an incarcerated litigant to
comply with the instructions attached to the court-approved Complaint form. Those
instructions state: “You must immediately notify the clerk . . . in writing of any change in
your mailing address. Failure to notify the court of any change in your mailing address
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may result in the dismissal of your case.” (Information and Instructions for a Prisoner
Filing Civil Rights Complaint at 2). In addition, Local Rule of Civil Procedure 83.3(d)
requires an unrepresented incarcerated party to submit a notice of change of address within
seven days after a change of address.
Plaintiff has a general duty to prosecute this case. Fid. Phila. Tr. Co. v. Pioche
Mines Consol., 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 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 constitutes a failure to prosecute.
Rule 41(b) of the Federal Rules of Civil Procedure provides that “[f]or failure of the
plaintiff to prosecute or to comply with these rules or any order of court, a defendant may
move for dismissal of an 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.
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
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or dismissal sanction. Thus the key factors are prejudice and availability of lesser
sanctions.” Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990).
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. Here, as in Carey,
“[a]n order to show cause why dismissal is not warranted . . . would only find itself taking
a round trip tour through the United States mail.” 856 F.2d at 1441.
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 this case, the
Court finds that a dismissal with prejudice would be unnecessarily harsh. The Court will
therefore dismiss the Complaint and this action without prejudice pursuant to Rule 41(b)
of the Federal Rules of Civil Procedure.
IT IS ORDERED:
(1) Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 6) and Motion
Requesting Assistance (Doc. 9) are denied as moot.
(2) The Complaint (Doc. 1) is dismissed without prejudice pursuant to Rule
41(b) of the Federal Rules of Civil Procedure for failure to prosecute. The Clerk of Court
must enter judgment accordingly and close this case.
. . . .
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(3) The docket shall reflect that the Court has considered whether an appeal of
this decision would be taken in good faith and certifies that an appeal would not be taken
in good faith for the reasons stated in the Order and because there is no arguable factual or
legal basis for an appeal.
Dated this 22nd day of May, 2026.
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