Bailey et al v. Suey et al

Filing 151

ORDER that all claims asserted by interested party Tony G. Hewitt are Dismissed. The clerk's office is instructed to close the case and enter judgment in favor of defendants. Signed by Judge James C. Mahan on 3/9/2015. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ANTHONY BAILEY #00683227, et al.,

Case No. 2:12-CV-1954 JCM (CWH)

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Plaintiff(s),

ORDER

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v.
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CLARK COUNTY, NEVADA, et al.,
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Defendant(s).
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Presently before the court is the matter of Anthony Bailey #00683227, et al. v. Clark

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County, Nevada, et al., case number 2:12-cv-01954-JCM-CWH.
On January 23, 2015, Magistrate Judge C.W. Hoffman, Jr. entered an order denying

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without prejudice an application to proceed in forma pauperis filed by an individual identified as
Tony G. Hewitt for failure to submit a completed application on the appropriate forms. (Doc. #
137). Mr. Hewitt was instructed to file a new, competed application within thirty days and was
specifically warned that the failure to do so would result in his application being denied. (Doc. #
137). Over thirty days have passed and Mr. Hewitt has not complied with court’s instruction.
Applicable rules permit a court to dismiss claims or deny relief for failure to comply with

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James C. Mahan
U.S. District Judge

court orders. See In re Phynylpropanolamine Prods. Liab. Litig., 460 F.3d 1217, 1227 (9th Cir.
2006). Generally speaking, dismissal for failure to obey a court order is a harsh penalty and should
only be imposed in extreme circumstances. Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th
Cir. 1987).
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Courts weigh the following five factors when determining whether to dismiss a case for
failing to comply with a court order: “(1) the public’s interest in expeditious resolution of litigation;
(2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public
policy favoring disposition of cases on their merits; and (5) the availability of less drastic
sanctions.” In re Phynylpropanolamine, 460 F.3d at 1226 (internal citations and quotations
omitted).

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“These factors are not a series of conditions precedent before the judge can do anything,
but a way for the district judge to think about what to do.” Id. (citing Valley Eng’rs v. Elec. Eng’g
Co., 158 F.3d 1051, 1057 (9th Cir. 1998). Although preferred, it is not required that the district
court make explicit findings to show that it has considered these factors. Id. A dismissal sanction
will only be overturned if the reviewing court is left with “a definite and firm conviction that it
was clearly outside the acceptable range of sanctions.” Id. (internal citations and quotations
omitted).

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James C. Mahan
U.S. District Judge

Here, the failure to comply with the court’s express instruction does not lend itself to the
expeditious resolution of litigation. Mr. Hewitt attempted to join this litigation more than two
years after it began. He has been given ample opportunity to proceed in this matter, but has failed
to do so. The failure to comply in a timely manner with court orders makes it difficult for the court
to effectively manage its docket. See Thompson v. Hous. Auth. of Los Angeles, 782 F.2d 829, 831
(9th Cir 1986) (citation omitted) (a court’s inherent power to control its docket includes the ability
to issue sanctions of dismissal where appropriate). Permitting this case to proceed would
substantially prejudice defendants, who have successfully obtained summary judgment on the
asserted claims. As such, the court concludes that less drastic sanctions are not appropriate and
denial of the application to proceed in forma pauperis and dismissal of all claims asserted by Mr.
Hewitt is appropriate.
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Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that all claims asserted by
interested party Tony G. Hewitt be, and the same hereby are, DISMISSED. The clerk’s office is
instructed to close the case and enter judgment in favor of defendants.
DATED March 9, 2015.

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__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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