Mize v. Hagel

Filing 8

ORDER DISMISSING CASE for failure to Comply with Court Order. Signed by Judge Jennifer A. Dorsey on 12/8/2014. (Copies have been distributed pursuant to the NEF - DKJ)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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James Kenneth Mize,

Case No. 2:14-cv-1113-JAD-NJK

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Plaintiff,

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v.

Order Dismissing Case for Failure to
Comply with Court Order

Chuck Hagel,

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Defendant.

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This matter comes before the Court on plaintiff James Kenneth Mize’s application to

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proceed in forma pauperis. Doc. 3. Magistrate Judge Koppe denied Mize’s in forma pauperis

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application, and I subsequently adopted her recommendation that the in forma pauperis

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application be denied. Docs. 4, 7. In my August 15, 2014, order, I informed Mize that he had

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20 days to pay the $400 court fee, and cautioned him that “failure to comply with this order by

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timely payment . . . may result in the dismissal of this action with prejudice without further

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notice.” Doc. 7 at 1-2. Almost four months have passed since I issued my order, and Mize has

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failed to pay the fee as instructed.

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Under Federal Rule of Civil Procedure 41(b), “If the plaintiff fails to prosecute or

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comply with these rules or a court order, a defendant may move to dismiss the action or any

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claim against it. Unless the order states otherwise, a dismissal under this subdivision . . .

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operates as an adjudication on the merits.”1 Rule 41(b) of the Federal Rules of Civil Procedure

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permits a district court to dismiss an action sua sponte for failure to prosecute.2 “In determining

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Fed. R. Civ. Proc. 41(b). Such a dismissal does not operate as an adjudication on the merits in
several circumstances, none of which are applicable here. See id.
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Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act sua sponte to
dismiss a suit for failure to prosecute”); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 F.3d 683, 689

(continued...)

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whether to dismiss a claim for failure to prosecute or failure to comply with a court order, the

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Court must weigh the following factors: (1) the public’s interest in expeditious resolution of

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litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to

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defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy

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favoring disposition of cases on their merits.”3

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Consideration of all five factors in this case favors dismissal with prejudice. The first

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two factors favor dismissal because I have waited almost four months for any response from

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Mize in connection with my August 15, 2014, order, but have received no response. I also note

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that there is no apparent prejudice to defendants, who have not been obligated to respond to the

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allegations in Mize’s complaint. I have already explored the less drastic alternatives by

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permitting plaintiff ample time to arrange for payment of the $400 fee and explaining the

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potential consequences of his failing to do so. And although disposition of this case on grounds

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other than its merits may be contrary to public policy, this factor alone, when weighed against

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the other four, is insufficient to prevent dismissal of the claim.

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Accordingly, it is HEREBY ORDERED that Mize’s claims are DISMISSED WITH

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PREJUDICE for failure to comply with the court’s August 15, 2014, order. The clerk of court

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is instructed to close this case.

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DATED: December 8, 2014.
_________________________________
Jennifer A. Dorsey
United States District Judge

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Clerk to notify:

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James Kenneth Mize
840233
Clark County Detention Center
330 South Casino Center
Las Vegas, NV 89101

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(...continued)
(9th Cir. 2005) (“courts may dismiss under Rule 41(b) sua sponte, at least under certain circumstances”).
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Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258,
1260 (9th Cir. 1992).

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