Butler v. Oliveira, et al

Filing 13

ORDER DISMISSING CASE WITHOUT PREJUDICE FOR PLAINTIFF'S FAILURE TO COMPLY WITH COURT ORDER 7 signed by Magistrate Judge Gary S. Austin on 4/30/2015. CASE CLOSED.(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DERWIN BUTLER,

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Plaintiff,

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vs.
M. OLIVEIRA, et al.,

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Defendants.

1:15-cv-00041-GSA-PC
ORDER DISMISSING CASE, WITHOUT
PREJUDICE, FOR PLAINTIFF’S
FAILURE TO COMPLY WITH COURT
ORDER
(Doc. 7.)
ORDER FOR CLERK TO CLOSE CASE

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I.

BACKGROUND

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

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

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November 5, 2014, at the U. S. District Court for the Northern District of California. (Doc. 1.)

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On January 2, 2015, the case was transferred to the Eastern District of California. (Doc. 4.) On

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March 13, 2015, Plaintiff consented to Magistrate Judge jurisdiction in this action pursuant to

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28 U.S.C. ' 636(c), and no other parties have made an appearance. (Doc. 3.) Therefore,

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pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California, the

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

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to a District Judge is required. Local Rule Appendix A(k)(3). (Doc. 9.)

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On March 17, 2015, the Court issued an order requiring Plaintiff to show cause, within

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thirty days, why this case should not be dismissed for Plaintiff’s failure to comply with the
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Court’s order of January 9, 2015, which required him to submit an application to proceed in

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forma pauperis or pay the filing fee for this action. (Doc. 10.) On March 23, 2015 and April 3,

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2015, Plaintiff filed notices to the Court, but neither of the notices was responsive to the

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Court’s orders or showed cause why the case should not be dismissed. (Docs. 11, 12.) To date,

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Plaintiff still has not paid the filing fee or submitted an application in response to the Court’s

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January 9, 2015 order.

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II.

DISMISSAL FOR FAILURE TO COMPLY

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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 November 5, 2014. 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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resolving payment of the filing fee for his lawsuit. 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 orders 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 a prisoner who
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may be indigent, making monetary sanctions of little use, and given the early stage of these

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

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the dismissal being considered in this case is without prejudice, the Court is stopping short of

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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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III.

CONCLUSION

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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 January 9, 2015; and

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The Clerk is directed to CLOSE this case.

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IT IS SO ORDERED.
Dated:

April 30, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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