Marsh v. Brown et al

Filing 43

ORDER DISMISSING CASE without prejudice, based on Plaintiff's failure to obey the Court's order of April 15, 2013; ORDER DIRECTING Clerk to close this case, signed by District Judge Lawrence J. O'Neill on 10/17/13. CASE CLOSED (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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1:10-cv-02353-LJO-GSA-PC

LAWRENCE L. MARSH,

ORDER DISMISSING THIS ACTION,
WITHOUT PREJUDICE, FOR
PLAINTIFF’S FAILURE TO OBEY A
COURT ORDER
(Doc. 36.)

vs.
JERRY BROWN, et al.,
Defendants.

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ORDER FOR CLERK TO CLOSE CASE

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I.

BACKGROUND

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Lawrence L. Marsh (“Plaintiff”) is a former state prisoner proceeding pro se and in

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forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this

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case on December 8, 2010. (Doc. 1.)

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On April 15, 2013, the court issued an order requiring Plaintiff to complete and return

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documents to initiate service of process upon defendants in this action, within thirty days.

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(Doc. 36.) The thirty day period expired, and Plaintiff failed to submit the service documents

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or otherwise respond to the court’s order. (Court Record.) On June 7, 2013, the court entered

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findings and recommendations, recommending that this action be dismissed, without prejudice,

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for failure to comply with the court’s order. (Doc. 37.) Plaintiff was provided an opportunity

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to file objections to the findings and recommendations within thirty days. (Id.) More than
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forty days passed, and Plaintiff did not file objections or otherwise respond to the findings and

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recommendations. (Court Record.) On July 19, 2013, the undersigned adopted the findings

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and recommendations, dismissing this action and closing the case. (Doc. 39.)

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On August 21, 2013, Plaintiff filed a motion for extension of time to file objections to

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the findings and recommendations. (Doc. 41.) The court construed Plaintiff’s motion as a

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motion for reconsideration of the order dismissing the case. On August 26, 2013, the court

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granted the motion for reconsideration and reopened the case, granting Plaintiff thirty days to

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comply with the court’s order of April 15, 2013 by submitting completed service documents to

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the court. The thirty day time period has now expired, and Plaintiff has not submitted service

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documents, requested an extension of time, or otherwise responded to the court’s order. (Court

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Record.)

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II.

DISMISSAL OF CASE FOR FAILURE TO COMPLY WITH COURT ORDER

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

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set forth in its order, Athe Court must weigh the following factors: (1) the public=s interest in

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

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prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the

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public policy favoring disposition of cases on their merits.@ Pagtalunan v. Galaza, 291 F.3d

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639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)).

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A>The public=s interest in expeditious resolution of litigation always favors dismissal,=@

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

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action has been pending since December 2010. Plaintiff's failure to respond to the court's order

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may reflect Plaintiff's disinterest in prosecuting this case. In such an instance, the court cannot

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continue to expend its scarce resources assisting a litigant who will not help himself by

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responding to the court’s orders or submitting the documents required to initiate service of

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process upon the defendants.

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dismissal.

Thus, both the first and second factors weigh in favor of

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Turning to the risk of prejudice, Apendency of a lawsuit is not sufficiently prejudicial in

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and of itself to warrant dismissal.@ Id. (citing Yourish at 991). However, Adelay inherently
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increases the risk that witnesses= memories will fade and evidence will become stale,@ id., and it

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is Plaintiff's failure to return documents to the court that is causing delay. More than six

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months have passed since the court ordered Plaintiff to submit service documents, and he has

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not complied. 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

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available to the court which would constitute a satisfactory lesser sanction while protecting the

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court from further unnecessary expenditure of its scarce resources. Plaintiff is proceeding in

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forma pauperis in this action, making monetary sanctions of little use, and given the early stage

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of these proceedings, the preclusion of evidence or witnesses is not available. However,

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inasmuch as the dismissal being considered in this case is without prejudice, the court is

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stopping short of issuing the harshest possible sanction of dismissal with prejudice.

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Finally, because public policy favors disposition on the merits, this factor will always
weigh against dismissal. Id. at 643.
Based on the foregoing, Plaintiff’s case shall be dismissed, without prejudice.

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III.

CONCLUSION

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Accordingly, IS HEREBY ORDERED that:

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1.

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This case is DISMISSED, without prejudice, based on Plaintiff's failure to obey
the court=s order of April 15, 2013; and

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2.

The Clerk is directed to close this case.

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IT IS SO ORDERED.
Dated:

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/s/ Lawrence J. O’Neill

October 17, 2013

UNITED STATES DISTRICT JUDGE
DEAC_Signature-END:

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