Arcelus v. Mimms

Filing 7

ORDER to SHOW CAUSE Why Case Should Not Be Dismissed for Plaintiff's Failure to Obey Court Order signed by Magistrate Judge Erica P. Grosjean on 2/8/2016. Show Cause Response due within thirty (30) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL SCOTT ARCELUS,

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Plaintiff,

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vs.

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MARGARET MIMMS,

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Defendant.

1:15-cv-01783-EPG-PC
ORDER TO SHOW CAUSE WHY CASE
SHOULD NOT BE DISMISSED FOR
PLAINTIFF’S FAILURE TO OBEY COURT
ORDER
(ECF No. 4.)
RESPONSE DUE IN THIRTY (30) DAYS

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Plaintiff is a civil detainee proceeding pro se with this civil rights action pursuant to 42

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U.S.C. § 1983. On January 28, 2016, Plaintiff consented to Magistrate Judge jurisdiction in

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this action pursuant to 28 U.S.C. ' 636(c), and no other parties have made an appearance.

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(ECF No. 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 December 4, 2015, the Court issued an order requiring Plaintiff to submit an

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application to proceed in forma pauperis or pay the $400.00 filing fee for this action, within

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forty-five days. (ECF No. 4.) The forty-five day time period has now expired, and Plaintiff

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has not submitted an application, paid the filing fee, or otherwise responded to the Court's

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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 November 30, 2015. 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 the 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 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, making monetary sanctions of little use, and given the early stage of

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

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

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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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ORDER TO SHOW CAUSE

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Within thirty days of the date of service of this order, Plaintiff is required to file

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a written response to this order, showing cause why this case should not be dismissed for

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Plaintiff’s failure to comply with the Court’s order of December 4, 2015; and

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2.

Plaintiff’s failure to file a response as required by this order shall result in the

dismissal of this case.

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IT IS SO ORDERED.
Dated:

February 8, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

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