Carey v. King

• Decision Date: 17 May 1988
• Docket Number: No. 86-4335,86-4335
• Parties: Gregory CAREY, Plaintiff-Appellant, v. John E. KING, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1439

856 F.2d 1439

12 Fed.R.Serv.3d 1221

Gregory CAREY, Plaintiff-Appellant, v. John E. KING, Defendant-Appellee.

No. 86-4335.

United States Court of Appeals, Ninth Circuit.

Submitted May 17, 1988 ^*.

Decided Sept. 15, 1988.

Eugene I. Annis, Lukins & Annis, P.S., Spokane, Wash., for plaintiff-appellant.

No appearance for defendant-appellee.

Appeal from the United States District Court for the Western District of Washington.

Before WALLACE, SNEED and POOLE, Circuit Judges.

PER CURIAM:

Carey appeals the district court's dismissal without prejudice of his action brought pursuant to 42 U.S.C. Sec. 1983 for failure to prosecute. He contends that the district court abused its discretion by dismissing his complaint sixty days after mail, addressed to him from the district court, was returned by the post office as undeliverable. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. We review a district court's order dismissing an action for failure to prosecute for an abuse of discretion. Link v. Wabash R.R. Co., 370 U.S. 626, 633, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734 (1962); Ash v. Cvetkov, 739 F.2d 493, 495 (9th Cir.1984), cert. denied, 470 U.S. 1007, 105 S.Ct. 1368, 84 L.Ed.2d 387 (1985). We affirm.

Carey filed a pro se civil rights complaint on August 8, 1986. At that time he was incarcerated at the King County jail. Soon thereafter, Carey was transferred to the State correctional facility at Walla Walla. On September 3, 1986, the district court issued an Order Directing Service of Process and Procedures which was mailed to Carey at King County jail, the address listed in his complaint. The Order was returned by the Post Office as undeliverable, and the action was dismissed without prejudice on November 10, 1986.

In determining whether to dismiss an action for lack of prosecution, the district court is required to weigh several 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." Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.1986). Here, the district court relied on Local Rule 41(b)(2), which confers discretion on the court to dismiss a pro se plaintiff's action if the plaintiff fails to keep the court apprised of his correct address. ¹ If mail is returned to the court by the post office, the pro se plaintiff has sixty days to communicate with the court or face possible dismissal of his action.

Carey first argues that the district court abused its discretion because he had no notice that dismissal was imminent. Here, the local rule itself provided notice of the action taken. Requiring any additional notice in the unique circumstances presented by a pro se litigant's failure to advise the district court of a change in his address is unworkable. Additional prior notice of imminent dismissal would be a futile gesture, given that the district court's prior mailing to Carey was returned as undeliverable.

Carey next complains that the district court did not consider alternative sanctions. But we can imagine no less drastic sanction that was available to the district court. Local Rule 41(b)(2) provides that the action may be dismissed without prejudice, not with prejudice. The district court could not contact Carey to threaten him with some lesser sanction. An order to show cause why dismissal was not warranted or an order imposing sanctions would only find itself taking a round trip tour through the United States mail. Carey's suggestion that we impose upon the district court an affirmative obligation to call the jailhouse to inquire into...