Clark 366758 v. Foreign Intelligence Court

D. Arizona

Clark 366758 v. Foreign Intelligence Court

DecidedSeptember 30, 2025

Docket4:25-cv-00230

StatusUnknown

This text of Clark 366758 v. Foreign Intelligence Court (Clark 366758 v. Foreign Intelligence Court) is published on Counsel Stack Legal Research, covering District Court, D. Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Clark 366758 v. Foreign Intelligence Court, (D. Ariz. 2025).

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1 WO MDR 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Richard Gaylen Clark, No. CV-25-00230-TUC-SHR 10 Plaintiff, 11 v. ORDER 12 Foreign Intelligence Court, et al., 13 Defendants.

14 15 I. Background 16 Rule 3.4 of the Local Rules of Civil Procedure requires an incarcerated litigant to 17 comply with the instructions attached to the court-approved complaint form. Those 18 instructions state: “You must immediately notify the Court . . . in writing of any change in 19 your mailing address. Failure to notify the Court of any change in your mailing 20 address may result in the dismissal of your case.” Instructions for a Prisoner Filing a 21 Civil Rights Complaint in the United States District Court for the District of Arizona at 2 22 (emphasis in original). In addition, Local Rule of Civil Procedure 83.3(d) requires an 23 unrepresented party to file a notice of change of address no later than fourteen days before 24 the change of address and an unrepresented incarcerated party to submit a notice of change 25 of address within seven days after a change of address. 26 On May 16, 2025, self-represented Plaintiff Richard Gaylen Clark, who was then 27 confined in the Arizona State Prison Complex-Tucson, filed a civil rights Complaint but 28 did not pay the filing and administrative fees for this action or file an Application to 1 Proceed In Forma Pauperis. That same day, the Clerk of Court mailed Plaintiff a Notice 2 of Assignment that, among other things, warned Plaintiff he must immediately file a notice 3 of change of address if his address changed and this case would be dismissed if he failed 4 to do so. 5 On June 6, Plaintiff filed a Notice of Change of Address. In a June 26, 2025 Order, 6 the Court, among other things, noted Plaintiff had been released and gave him 30 days to 7 either pay the filing and administrative fees or file a non-prisoner application to proceed in 8 forma pauperis. The same day, the Clerk of Court mailed the Order to Plaintiff at the 9 address he provided. 10 On July 7, 2025, the mail was returned to the Court with the notation, “Return to 11 Sender[;] Attempted – Not Known[;] Unable to Forward.” Plaintiff has not filed a Notice 12 of Change of Address or otherwise notified the Court of his current address. 13 II. Failure to Prosecute 14 Plaintiff has the general duty to prosecute this case. Fid. Phila. Tr. Co. v. Pioche 15 Mines Consol., Inc., 587 F.2d 27, 29 (9th Cir. 1978). In this regard, it is the duty of a self- 16 represented plaintiff to keep the Court apprised of his current address and to comply with 17 the Court’s orders in a timely fashion. This Court does not have an affirmative obligation 18 to locate Plaintiff. “A party, not the district court, bears the burden of keeping the court 19 apprised of any changes in his mailing address.” Carey v. King, 856 F.2d 1439, 1441 (9th 20 Cir. 1988). Plaintiff’s failure to keep the Court informed of his new address constitutes a 21 failure to prosecute. 22 Rule 41(b) of the Federal Rules of Civil Procedure provides “[i]f the plaintiff fails 23 to prosecute or to comply with these rules or a court order, a defendant may move to dismiss 24 the action or any claim against it.” In Link v. Wabash Railroad Co., 370 U.S. 626, 629–31 25 (1962), the Supreme Court recognized a federal district court has the inherent power to 26 dismiss a case on its own for failure to prosecute, even though the language of Rule 41(b) 27 appears to require a motion from a party. Moreover, in appropriate circumstances, the 28 1 Court may dismiss a complaint for failure to prosecute even without notice or hearing. Id. 2 at 633. 3 In determining whether Plaintiff’s failure to prosecute warrants dismissal of the 4 case, the Court must weigh the following five factors: “(1) the public’s interest in 5 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk 6 of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 7 merits; and (5) the availability of less drastic sanctions.” Carey, 856 F.2d at 1440 (quoting 8 Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). “The first two of these factors 9 favor the imposition of sanctions in most cases, while the fourth cuts against a default or 10 dismissal sanction. Thus the key factors are prejudice and availability of lesser sanctions.” 11 Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990). 12 The first, second, and third factors favor dismissal of this case. Plaintiff’s failure to 13 keep the Court informed of his address prevents the case from proceeding in the foreseeable 14 future. The fourth factor, as always, weighs against dismissal. The fifth factor requires 15 the Court to consider whether a less drastic alternative is available. Without Plaintiff’s 16 current address, however, certain alternatives are bound to be futile. Here, as in Carey, 17 “[a]n order to show cause why dismissal [i]s not warranted or an order imposing sanctions 18 would only find itself taking a round trip tour through the United States mail.” 856 F.2d 19 at 1441. 20 The Court finds only one less drastic sanction is realistically available. Rule 41(b) 21 provides a dismissal for failure to prosecute operates as an adjudication on the merits 22 “[u]nless the dismissal order states otherwise.” The Court finds a dismissal with prejudice 23 would be unnecessarily harsh and, therefore, will dismiss the Complaint and this action 24 without prejudice pursuant to Rule 41(b). 25 . . . . 26 . . . . 27 . . . . 28 . . . . 1 IT IS ORDERED Plaintiff's Complaint (Doc. 1) and this action are dismissed 2| 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. 4 Dated this 30th day of September, 2025. 5 6 □ {_f-

g Honorable Scott H. Rash United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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1 WO MDR 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Richard Gaylen Clark, No. CV-25-00230-TUC-SHR 10 Plaintiff, 11 v. ORDER 12 Foreign Intelligence Court, et al., 13 Defendants.

14 15 I. Background 16 Rule 3.4 of the Local Rules of Civil Procedure requires an incarcerated litigant to 17 comply with the instructions attached to the court-approved complaint form. Those 18 instructions state: “You must immediately notify the Court . . . in writing of any change in 19 your mailing address. Failure to notify the Court of any change in your mailing 20 address may result in the dismissal of your case.” Instructions for a Prisoner Filing a 21 Civil Rights Complaint in the United States District Court for the District of Arizona at 2 22 (emphasis in original). In addition, Local Rule of Civil Procedure 83.3(d) requires an 23 unrepresented party to file a notice of change of address no later than fourteen days before 24 the change of address and an unrepresented incarcerated party to submit a notice of change 25 of address within seven days after a change of address. 26 On May 16, 2025, self-represented Plaintiff Richard Gaylen Clark, who was then 27 confined in the Arizona State Prison Complex-Tucson, filed a civil rights Complaint but 28 did not pay the filing and administrative fees for this action or file an Application to 1 Proceed In Forma Pauperis. That same day, the Clerk of Court mailed Plaintiff a Notice 2 of Assignment that, among other things, warned Plaintiff he must immediately file a notice 3 of change of address if his address changed and this case would be dismissed if he failed 4 to do so. 5 On June 6, Plaintiff filed a Notice of Change of Address. In a June 26, 2025 Order, 6 the Court, among other things, noted Plaintiff had been released and gave him 30 days to 7 either pay the filing and administrative fees or file a non-prisoner application to proceed in 8 forma pauperis. The same day, the Clerk of Court mailed the Order to Plaintiff at the 9 address he provided. 10 On July 7, 2025, the mail was returned to the Court with the notation, “Return to 11 Sender[;] Attempted – Not Known[;] Unable to Forward.” Plaintiff has not filed a Notice 12 of Change of Address or otherwise notified the Court of his current address. 13 II. Failure to Prosecute 14 Plaintiff has the general duty to prosecute this case. Fid. Phila. Tr. Co. v. Pioche 15 Mines Consol., Inc., 587 F.2d 27, 29 (9th Cir. 1978). In this regard, it is the duty of a self- 16 represented plaintiff to keep the Court apprised of his current address and to comply with 17 the Court’s orders in a timely fashion. This Court does not have an affirmative obligation 18 to locate Plaintiff. “A party, not the district court, bears the burden of keeping the court 19 apprised of any changes in his mailing address.” Carey v. King, 856 F.2d 1439, 1441 (9th 20 Cir. 1988). Plaintiff’s failure to keep the Court informed of his new address constitutes a 21 failure to prosecute. 22 Rule 41(b) of the Federal Rules of Civil Procedure provides “[i]f the plaintiff fails 23 to prosecute or to comply with these rules or a court order, a defendant may move to dismiss 24 the action or any claim against it.” In Link v. Wabash Railroad Co., 370 U.S. 626, 629–31 25 (1962), the Supreme Court recognized a federal district court has the inherent power to 26 dismiss a case on its own for failure to prosecute, even though the language of Rule 41(b) 27 appears to require a motion from a party. Moreover, in appropriate circumstances, the 28 1 Court may dismiss a complaint for failure to prosecute even without notice or hearing. Id. 2 at 633. 3 In determining whether Plaintiff’s failure to prosecute warrants dismissal of the 4 case, the Court must weigh the following five factors: “(1) the public’s interest in 5 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk 6 of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 7 merits; and (5) the availability of less drastic sanctions.” Carey, 856 F.2d at 1440 (quoting 8 Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)). “The first two of these factors 9 favor the imposition of sanctions in most cases, while the fourth cuts against a default or 10 dismissal sanction. Thus the key factors are prejudice and availability of lesser sanctions.” 11 Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990). 12 The first, second, and third factors favor dismissal of this case. Plaintiff’s failure to 13 keep the Court informed of his address prevents the case from proceeding in the foreseeable 14 future. The fourth factor, as always, weighs against dismissal. The fifth factor requires 15 the Court to consider whether a less drastic alternative is available. Without Plaintiff’s 16 current address, however, certain alternatives are bound to be futile. Here, as in Carey, 17 “[a]n order to show cause why dismissal [i]s not warranted or an order imposing sanctions 18 would only find itself taking a round trip tour through the United States mail.” 856 F.2d 19 at 1441. 20 The Court finds only one less drastic sanction is realistically available. Rule 41(b) 21 provides a dismissal for failure to prosecute operates as an adjudication on the merits 22 “[u]nless the dismissal order states otherwise.” The Court finds a dismissal with prejudice 23 would be unnecessarily harsh and, therefore, will dismiss the Complaint and this action 24 without prejudice pursuant to Rule 41(b). 25 . . . . 26 . . . . 27 . . . . 28 . . . . 1 IT IS ORDERED Plaintiff's Complaint (Doc. 1) and this action are dismissed 2| 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. 4 Dated this 30th day of September, 2025. 5 6 □ {_f-

g Honorable Scott H. Rash United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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