Hanson v. Mimms et al

Filing 6

ORDER to SHOW CAUSE why Case Should not be Dismissed for Plaintiff's Failure to Obey Court Orders signed by Magistrate Judge Gary S. Austin on 09/21/2017. Show Cause Response due by 10/10/2017.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DARYL LEON HANSON,

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Plaintiff,

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vs.
MARGARET MIMMS, et al.,

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Defendants.

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1:17-cv-00576-GSA-PC
ORDER TO SHOW CAUSE WHY CASE
SHOULD NOT BE DISMISSED FOR
PLAINTIFF’S FAILURE TO OBEY COURT
ORDERS
(ECF Nos. 3, 5.)
FOURTEEN-DAY DEADLINE TO
RESPOND

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Daryl Leon Hanson (“Plaintiff”) is a Fresno County Jail inmate proceeding pro se and

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in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the

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Complaint commencing this action on April 24, 2017. (ECF No. 1.)

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On April 26, 2017 and August 3, 2017, the court issued orders requiring Plaintiff to

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complete the court’s form indicating whether he consents to or declines Magistrate Judge

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jurisdiction, and return the form to the court within thirty days. (ECF Nos. 3, 5.) The thirty-

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day time periods have now expired, and Plaintiff has not returned the court’s consent/decline

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form.

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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 April 24, 2017. Plaintiff’s failure to respond to the court’s orders

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may reflect Plaintiff’s disinterest in prosecuting this case. In such an instance, the court cannot

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continue to expend its scarce resources assisting a litigant who will not respond to court orders.

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Thus, both the first and second factors 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 submit the court’s consent/decline form that is causing delay.

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Therefore, the 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. Given that Plaintiff is a pro

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se litigant proceeding in forma pauperis in this action, the court finds monetary sanctions of

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little use, and given the early stage of these proceedings, the preclusion of evidence or

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witnesses is not available. However, inasmuch as the dismissal being considered in this case is

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without prejudice, the court is stopping short of issuing the harshest possible sanction of

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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.
ORDER TO SHOW CAUSE

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In light of the foregoing analysis, Plaintiff is HEARBY ORDERED to respond in

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writing to this order, within fourteen (14) days of the date of service of this order, showing

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cause why this case should not be dismissed for Plaintiff’s failure to comply with the court’s
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orders issued on April 26, 2017, and August 3, 2017. Failure to respond to this order may

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result in the dismissal of this action, without prejudice.

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IT IS SO ORDERED.
Dated:

September 21, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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