Ross v. Woodward, et al.

Filing 7

ORDER DISMISSING CASE signed by Magistrate Judge Gary S. Austin on 12/30/2013. CASE CLOSED. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LYNN DELL ROSS,

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Plaintiff,

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vs.

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B. WOODWARD, et al.,

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Defendants.

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I.

1:13-cv-01703-GSA-PC
ORDER DISMISSING ACTION,
WITHOUT PREJUDICE, FOR
FAILURE TO COMPLY WITH
COURT ORDER
(Doc. 6.)
ORDER FOR CLERK TO CLOSE
CASE

BACKGROUND

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Lynn Dell Ross (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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

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commencing this action on October 23, 2013. (Doc. 1.) On October 30, 2013, Plaintiff

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

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

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the 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).

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On November 14, 2013, the Court issued an order striking Plaintiff’s unsigned

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application to proceed in forma pauperis and requiring Plaintiff to file a new, signed application

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within thirty days. (Doc. 6.) The thirty-day deadline has now expired, and Plaintiff has not

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filed a new application 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 October 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 the court’s form pursuant to the court’s orders. Thus, both the first and second factors

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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 has not paid the

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filing fee for this action and seeks to proceed in forma pauperis, making monetary sanctions of

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little use, and given the early stage of these proceedings, the preclusion of evidence or

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witnesses is not available. However, inasmuch as the dismissal being considered in this case is

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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 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 November 14, 2013; and

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The Clerk is directed to close this case.

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IT IS SO ORDERED.
Dated:

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December 30, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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