Johnson v. Byers et al

Filing 24

ORDER Dismissing Case for Failure to Obey Court Order, signed by Magistrate Judge Gary S. Austin on 5/16/15. CASE CLOSED. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WENDELL WALTER JOHNSON,

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Plaintiff,

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vs.
T. BYERS, et al.,

1:11-cv-00998-GSA-PC
ORDER DISMISSING CASE FOR
FAILURE TO OBEY COURT ORDER
(Doc. 23.)
ORDER FOR CLERK TO CLOSE CASE

Defendants.

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Wendell Walter Johnson (“Plaintiff”) is a state prisoner proceeding pro se with this civil

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rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this

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action on June 11, 2011. (Doc. 1.) On June 24, 2011, and June 28, 2011, Plaintiff consented to

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the jurisdiction of a Magistrate Judge in this action pursuant to 28 U.S.C. ' 636(c), and no other

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parties have made an appearance. (Doc. 3.) Therefore, pursuant to Appendix A(k)(4) of the

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Local Rules of the Eastern District of California, the undersigned shall conduct any and all

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proceedings in the case until such time as reassignment to a District Judge is required. Local

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Rule Appendix A(k)(3). (Docs. 8, 11.)

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The Court screened the Complaint and issued an order on February 20, 2014, requiring

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Plaintiff to either file an amended complaint or notify the Court of his willingness to proceed

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with the claims found cognizable by the Court. (Doc. 16.) On April 14, 2014, Plaintiff filed

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the First Amended Complaint. (Doc. 19.)
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On March 18, 2015, the Court issued an order finding cognizable claims in the First

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Amended Complaint and requiring Plaintiff to complete and return service documents, within

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thirty days. (Doc. 19.) The thirty day period has now expired, and Plaintiff has not submitted

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the service documents 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

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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 June 6, 2011. 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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submitting documents needed for service of process of his complaint. Thus, both the first and

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second factors weigh in favor of dismissal.

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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 submit service documents that is causing delay. Therefore, the third

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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.

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Accordingly, 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 March 18, 2015; and
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The Clerk of Court is directed to CLOSE this case.

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IT IS SO ORDERED.
Dated:

May 16, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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