Martinez v. Calaveras County Sheriff's Jail et al

Filing 13

ORDER for Plaintiff to SHOW CAUSE Why Case Should Not Be Dismissed for Failure to State a Claim and Failure to Comply With a Court Order 12 , signed by Magistrate Judge Erica P. Grosjean on 11/16/16: 30-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PAUL A. MARTINEZ,
Plaintiff,

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v.
CALAVERAS COUNTY SHERIFF’S
JAIL, et al.,
Defendants.

1:15-cv-00887-EPG (PC)
ORDER FOR PLAINTIFF TO SHOW
CAUSE WHY CASE SHOULD NOT BE
DISMISSED FOR FAILURE TO STATE A
CLAIM AND FAILURE TO COMPLY
WITH A COURT ORDER
(ECF NO. 12)
THIRTY DAY DEADLINE

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Paul Martinez (“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. Plaintiff filed the Complaint commencing this

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action on June 11, 2015. (ECF No. 1). On October 3, 2016, the Court directed Plaintiff to file

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an amended complaint within 30 days from the date of service of the order. (ECF No. 12). The

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Court also notified Plaintiff that failure to file an amended complaint in compliance with the

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order would result in dismissal of the case for failure to state a claim and failure to comply with

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a court order. (Id. at p. 8). The time period has expired, and Plaintiff has not filed an amended

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complaint. Therefore, Plaintiff will be ordered to show cause why the case should not be

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dismissed for failure to state a claim and for failure to comply with a court order.

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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)). While it has

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only been approximately forty-five days since Plaintiff was ordered to file an amended

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complaint, the case has been pending since June of 2015, and there is no operative complaint in

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this case.

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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 filed an amended complaint that is causing

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delay. The case is now over a year old and there is no operative complaint. The case is now

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stalled until Plaintiff files an amended complaint. Therefore, the third factor weighs in favor of

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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. While dismissal

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is a harsh sanction, Plaintiff’s complaint has already been dismissed (with leave to amend) for

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failure to state a claim and there is no operative complaint.

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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 within thirty (30)

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days from the date of service of this order, Plaintiff shall show cause why the case should not

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be dismissed for failure to state a claim and failure to comply with a court order. Failure to

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respond will result in dismissal of the case.

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IT IS SO ORDERED.
Dated:

November 16, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

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