Trujillo v. Stainer et al

Filing 9

ORDER DISMISSING CASE for Failure to Obey a Court Order, signed by Magistrate Judge Gary S. Austin on 12/30/14. CASE CLOSED. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SAMUEL TRUJILLO,

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Plaintiff,

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vs.
M. STAINER, et al.,

1:13-cv-00363-GSA-PC
ORDER
DISMISSING
CASE
FOR
FAILURE TO OBEY COURT ORDER
(Doc. 8.)
ORDER FOR CLERK TO CLOSE CASE

Defendants.

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Samuel Trujillo (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights

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

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March 13, 2013. (Doc. 1.) On March 29, 2013, Plaintiff consented to Magistrate Judge

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jurisdiction under 28 U.S.C. § 636(c) ), and no other parties have made an appearance. (Doc.

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5.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of

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California, the undersigned shall conduct any and all proceedings in the case until such time as

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reassignment to a District Judge is required. Local Rule Appendix A(k)(3).

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On November 19, 2014, the Court issued an order requiring Plaintiff to file an amended

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complaint or notify the court of his willingness to proceed on the claims found cognizable by

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the court, within thirty days. (Doc. 8.) The thirty day period has now expired, and Plaintiff has

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not filed an amended complaint, filed a notice, 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 March 13, 2013. Plaintiff's failure to respond to the Court's

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order may reflect Plaintiff's disinterest in prosecuting this case. In such an instance, the Court

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

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litigating his lawsuit. Thus, both the first and 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 file an amended complaint or notify the court that he is willing to

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proceed that is 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

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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

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weigh against dismissal. Id. at 643.

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Accordingly, based on the foregoing, IT IS HEREBY ORDERED that:

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This case is DISMISSED without prejudice, based on Plaintiff’s failure to obey
the Court=s order of November 19, 2014; and

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The Clerk of Court is directed to CLOSE this case.

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IT IS SO ORDERED.
Dated:

December 30, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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