Arcelus v. Mimms

Filing 8

ORDER DISMISSING CASE for failure to comply with Court Order 4 signed by Magistrate Judge Erica P. Grosjean on 4/1/2016. CASE CLOSED.(Lundstrom, T)

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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,
vs.

1:15-cv-01783-EPG-PC
ORDER DISMISSING CASE FOR
FAILURE TO COMPLY WITH COURT
ORDER
(ECF No. 4.)

MARGARET MIMMS,
Defendant.

ORDER FOR CLERK TO CLOSE CASE

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Michael Scott Arcelus (“Plaintiff”) is a civil detainee proceeding pro se with 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 November 30, 2015. (ECF No. 1.)

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On January 28, 2016, Plaintiff consented to the jurisdiction of a Magistrate Judge in this

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

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No. 6.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of

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

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

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On December 5, 2015, the Court issued an order requiring Plaintiff to submit a non-

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

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within thirty days. (ECF No. 4.) The thirty-day time period expired, and Plaintiff failed to

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comply with the Court‟s order or otherwise respond to the order.
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On February 8, 2016, the Court issued an order to show cause, requiring Plaintiff to

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respond within thirty days showing cause why this case should not be dismissed based on his

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failure to comply with the Court‟s order of December 5, 2015. (ECF No. 7.) Plaintiff was

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forewarned in the order to show cause that his failure to respond as required would result in the

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dismissal of this case. (Id. at 3 ¶2.) The thirty-day time period has expired, and Plaintiff has

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not filed a response to the order to show cause or otherwise respond to the 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, “the 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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“„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, “pendency of a lawsuit is not sufficiently prejudicial in

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and of itself to warrant dismissal.” Id. (citing Yourish at 991). However, “delay inherently

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increases the risk that witnesses‟ memories will fade and evidence will become stale,” id., and

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it 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
weigh against dismissal. Id. at 643.

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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 December 4, 2015; and
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The Clerk of Court is directed to CLOSE this case.

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IT IS SO ORDERED.
Dated:

April 1, 2016

/s/
UNITED STATES MAGISTRATE JUDGE

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