Unpublished Disposition, 852 F.2d 1289 (9th Cir. 1986)

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US Court of Appeals for the Ninth Circuit - 852 F.2d 1289 (9th Cir. 1986)

Johnny Jay GAINES, Plaintiff-Appellant,v.Priscilla J. THORNBERG, Defendant-Appellee.

No. 87-3828.

United States Court of Appeals, Ninth Circuit.

Submitted April 22, 1988.* Decided July 26, 1988.



In June 1986, Johnny Jay Gaines filed pro se a civil rights action under 42 U.S.C. § 1983, claiming that on May 19, 1986, Priscilla J. Thornberg violated his rights under the fourth amendment by her participation in an allegedly illegal search that led to the revocation of his probation. In December of that year, Thornberg moved for summary judgment. However, the motion could not be delivered to Gaines because he was no longer at the address he had listed with the court.

The court issued an order in February 1987, stating that Gaines' action would be subject to dismissal pursuant to W.D. Wash. R. 41(b) (2) if he did not supply the court with his address within 60 days. Rule 41(b) (2) states:

A party proceeding pro se shall keep the court and opposing parties advised as to his current address. If mail directed to a pro se plaintiff by the clerk is returned by the Post Office, and if such plaintiff fails to notify the court and opposing parties within 60 days thereafter of his current address, the court may dismiss the action without prejudice for failure to prosecute.

When Gaines failed to respond, his action was dismissed. Judgment was entered on April 13. Gaines filed a notice of appeal on April 15.

Gaines' failure to keep the district court informed of an address at which he could be reached prevented the orderly processing of his complaint. Dismissal of a case without prejudice is not a harsh sanction where, as here, sufficient time exists for the plaintiff to file another action. The district court's dismissal of Gaines' action without prejudice was not an abuse of discretion. Cf. Ace Novelty Co., Inc. v. Gooding Amusement Co., 664 F.2d 761, 763 (9th Cir. 1981) (dismissal with prejudice was an abuse of discretion).



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3