Elmore v. Flippo et al

Filing 26

ORDER Dismissing Case, Without Prejudice, for Failure to Obey a Court Order, signed by Magistrate Judge Gary S. Austin on 1/26/12. CASE CLOSED.(Verduzco, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TONIE ELMORE,

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Plaintiff,

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vs.

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E. FLIPPO, et al.,

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Defendants.

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1:10-cv-01738-GSA-PC
ORDER DISMISSING CASE, WITHOUT
PREJUDICE, FOR FAILURE TO OBEY A
COURT ORDER
(Doc. 19.)
ORDER FOR CLERK TO CLOSE CASE

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Tonie Elmore ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on September 2, 2010 at the United

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States District Court for the Central District of California. (Doc. 3.) On September 22, 2010, the case

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was transferred to the Eastern District of California. (Doc. 6.) On October 4, 2010, Plaintiff consented

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to Magistrate Judge jurisdiction in this action, and no other parties have made an appearance. (Doc. 9.)

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On December 13, 2010, the Court dismissed Plaintiff's Complaint for failure to state a claim,

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with leave to amend. (Doc. 10.) On March 3, 2011, Plaintiff filed a First Amended Complaint. (Doc.

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13.) The Court screened the First Amended Complaint pursuant to 28 U.S.C. 1915 and entered an order

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on November 8, 2011, giving Plaintiff two options, to file a Second Amended Complaint or to notify

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the Court of his willingness to proceed with the claims found cognizable by the Court, within thirty days.

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(Doc. 19.) On December 12, 2011, the Court granted Plaintiff a thirty-day extension of time to respond

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to the order. (Doc. 21.) The thirty-day period has now expired, and Plaintiff has not filed a Second

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Amended Complaint or otherwise responded to the Court's order.

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In determining whether to dismiss this action for failure to comply with the directives set forth

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in its order, “the Court must weigh the following factors: (1) the public’s interest in expeditious

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resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to

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defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring

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disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing

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Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).

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“‘The public’s interest in expeditious resolution of litigation always favors dismissal,’” id.

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(quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)), and here, the action has

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been pending since August 31, 2010. Plaintiff's failure to respond to the Court's order may reflect

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Plaintiff's disinterest in prosecuting this case. In such an instance, the Court cannot continue to expend

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its scarce resources assisting a litigant who will not help himself by either submitting an amended

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pleading making the clarifications required by the Court or by notifying the Court of his willingness to

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proceed on the claims found cognizable by the Court. Thus, both the first and second factors weigh in

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favor of dismissal.

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Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in and of

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itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently increases the risk

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that witnesses’ memories will fade and evidence will become stale,” id., and it is Plaintiff's failure to set

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forth clear claims in the first instance and to respond to the Court's order in the second instance that is

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causing delay. Therefore, the third factor weighs in favor of dismissal.

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As for the availability of lesser sanctions, at this stage in the proceedings there is little available

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to the Court which would constitute a satisfactory lesser sanction while protecting the Court from further

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unnecessary expenditure of its scarce resources. Plaintiff is proceeding in forma pauperis in this action,

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making monetary sanctions of little use, and given the early stage of these proceedings, the preclusion

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of evidence or witnesses is not available. However, inasmuch as the dismissal being considered in this

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case is without prejudice, the Court is stopping short of issuing the harshest possible sanction of

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dismissal with prejudice.

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Finally, because public policy favors disposition on the merits, this factor will always weigh

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against dismissal. Id. at 643. Therefore, based on the foregoing analysis, this action shall be dismissed

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for failure to comply with the Court's order of November 8, 2011.

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In light of the foregoing, IT IS HEREBY ORDERED that:

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This action is DISMISSED, without prejudice, based on Plaintiff's failure to obey the
Court’s order of November 8, 2011; and

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2.

The Clerk is directed to CLOSE this case.

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IT IS SO ORDERED.

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Dated:
6i0kij

January 26, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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