Sims v. Duncan et al

Filing 10

ORDER DISMISSING Action, without Prejudice, for Failure to Comply with Court Order; ORDER for Clerk to Close Case signed by Magistrate Judge Gary S. Austin on 07/31/2014. CASE CLOSED. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT SIMS,

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Plaintiff,

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vs.
YVETTE DUNCAN, et al.,

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Defendants.

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1:13-cv-00536-GSA-PC
ORDER DISMISSING ACTION,
WITHOUT PREJUDICE, FOR
FAILURE TO COMPLY WITH
COURT ORDER
(Doc. 9.)
ORDER FOR CLERK TO CLOSE
CASE

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I.

BACKGROUND

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Robert Sims (APlaintiff@) is a civil detainee proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint

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commencing this action on April 15, 2013. (Doc. 1.) On May 6, 2013, Plaintiff consented to

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the jurisdiction of a Magistrate Judge under 28 U.S.C. § 636(c), and no other party has

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appeared. (Doc. 6.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern

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District of California, the undersigned shall conduct any and all proceedings in the case until

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

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On June 12, 2014, the court issued an order requiring Plaintiff to complete and return

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documents to initiate service of process within thirty days. (Doc. 9.) The thirty day deadline

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has now expired, and Plaintiff has not returned the service documents or otherwise responded

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to the 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 April 15, 2013. 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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returning documents to the court to initiate service of process in his lawsuit. Thus, both the

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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 respond to the Court's order 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

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weigh against dismissal. Id. at 643.

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///
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Accordingly, IT IS HEREBY ORDERED that:

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1.

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This action is DISMISSED without prejudice, based on Plaintiff's failure to obey
the court=s order of June 12, 2014; and

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The Clerk is directed to close this case.

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IT IS SO ORDERED.
Dated:

July 31, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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