Ronald Young v. Sisodia et al

Filing 25

ORDER to SHOW CAUSE; ORDER DIRECTING PLAINTIFF TO SUBMIT SERVICE DOCUMENTS and USM-285 Forms; Service is appropriate for C. Sisodia, signed by Magistrate Judge Erica P. Grosjean on 02/9/17. Clerk to send plaintiff: 1 Summons, 1 USM-285 Forms, and 2 copies of the Amended Complaint filed on 10/24/2016. (30-Day Deadline) (Attachments: # 1 USM Prisoner Instructions, # 2 Second Amended Complaint, dated 10/24/2016)( Show Cause Response : 30-Day Deadline) (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RONALD YOUNG,

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Plaintiff,

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v.

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1:15-cv-00640-LJO-EPG (PC)
ORDER FOR PLAINTIFF TO SHOW
CAUSE WHY CASE SHOULD NOT BE
DISMISSED FOR FAILURE TO COMPLY
WITH A COURT ORDER

C. SISODIA,

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Defendant.

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ORDER FORWARDING SERVICE
DOCUMENTS TO PLAINTIFF FOR
COMPLETION
(ECF NO. 24)

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THIRTY DAY DEADLINE

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Ronald Young (“Plaintiff”) is proceeding pro se and in forma pauperis in this civil

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rights action pursuant to 42 U.S.C. § 1983. The case is now proceeding on Plaintiff’s Second

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Amended Complaint. (ECF Nos. 19, 20, & 23).

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On December 9, 2016, the Court directed Plaintiff to complete and return certain

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service documents within thirty days. (ECF No. 24). The Court also notified Plaintiff that

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failure to complete and return the service documents within the 30 days could result in

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dismissal of this action. (Id. at p. 2). The time period has expired and Plaintiff has not returned

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the service documents. Therefore, Plaintiff will be ordered to show cause why the Court

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should not issue findings and recommendations that recommend dismissing this case for failure

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to comply with a court order.

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The Court notes that if Plaintiff completes and returns the service documents within

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thirty days of the date of service of this order, the Court will discharge this order to show cause.

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“In determining whether to dismiss a[n] [action] for failure to prosecute or failure to
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comply with a court order, the Court must weigh the following factors: (1) the public=s interest

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in 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)). It has been

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approximately sixty days since Plaintiff was ordered to complete and return the service

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documents. Additionally, the case has been pending since April of 2015, and the defendant has

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not yet been served.

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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.@ Pagtalunan, 291 F.3d at 642 (citing Yourish at 991).

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However, Adelay inherently increases the risk that witnesses= memories will fade and evidence

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will become stale,@ id., and it is Plaintiff's failure to return the service documents that is causing

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delay. The case is now over a year old and a half old and the defendant has not been served.

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The case is stalled until Plaintiff completes and returns the service documents. Therefore, the

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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. Monetary sanctions are of

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little use, considering Plaintiff’s incarceration and in forma pauperis status, and given the stage

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of these proceedings, the preclusion of evidence or witnesses is not available. Additionally,

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

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short of using 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.
Accordingly, based on the foregoing, it is HEREBY ORDERED that:
1. Within thirty (30) days from the date of service of this order, Plaintiff shall
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show cause why the Court should not issue findings and recommendations that

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recommend dismissing this case for failure to comply with a court order;

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2. Service is appropriate for the following defendant(s):

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a. C. Sisodia;

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3. The Clerk of Court shall SEND Plaintiff one (1) USM-285 form, one (1)

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summons, a Notice of Submission of Documents form, an instruction sheet, and

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a copy of the Second Amended Complaint filed on October 24, 2016 (ECF No.

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19);

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4. Within thirty (30) days from the date of this order, Plaintiff shall complete the

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attached Notice of Submission of Documents and submit the completed Notice

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to the Court with the following documents:

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a. A completed summons;

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b. A completed USM-285 form; and

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c. Two (2) copies of the endorsed Second Amended Complaint filed on

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October 24, 2016;

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5. Plaintiff need not attempt service on the defendant and need not request waiver

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of service. Upon receipt of the above-described documents, the Court will

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direct the United States Marshal to serve the above-named defendant pursuant

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to Federal Rule of Civil Procedure 4 without payment of costs;

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6. If Plaintiff completes and returns the service documents within thirty days of

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the date of service of this order, the Court will discharge this order to show

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cause; and

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7. Failure to respond to this order will result in the Court issuing findings

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and recommendations that recommend that this case be dismissed.

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IT IS SO ORDERED.
Dated:

February 9, 2017

/s/
UNITED STATES MAGISTRATE JUDGE

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