Gorum v. Calderwood

Filing 19

ORDER. It is therefore ordered that this action is dismissed without prejudice. It is further ordered that 14 , 16 , 17 , and 18 Motions are denied as moot. It is further ordered that the Clerk of Court shall enter judgment accordingly. Signed by Judge Andrew P. Gordon on 12/2/15. (Copies have been distributed pursuant to the NEF - TR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ANTOINE GORUM,

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Case No. 2:15-cv-00065-APG-GWF
Plaintiff,

ORDER

v.
CALDERWOOD,

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Defendant.

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This action is a pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983 by

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a state prisoner.

On October 21, 2015, the Court issued an order dismissing the

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second amended complaint with leave to amend and directed Plaintiff to file an

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amended complaint by November 23, 2015. (Dkt. #15 at 9). Plaintiff has not filed an

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amended complaint.

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“statement of facts is 5 pages long, Plaintiff is asking that this Court accepts his motion

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to move forward with his civil complaint because his complaint has merits.” (Dkt. #18 at

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1). The Court interprets this notice as Plaintiff’s refusal to file an amended complaint in

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compliance with this Court’s October 21, 2015 order because Plaintiff believes his

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second amended complaint has merit.1

Instead, Plaintiff has filed a “motion” which states, Plaintiff’s

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District courts have the inherent power to control their dockets and “[i]n the

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exercise of that power, they may impose sanctions including, where appropriate . . .

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dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829,

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831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s

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failure to prosecute an action, failure to obey a court order, or failure to comply with

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To the extent that Plaintiff is attempting to file a motion for reconsideration, the
Court denies the motion. See Brown v. Kinross Gold, U.S.A., 378 F.Supp.2d 1280,
1288 (D. Nev. 2005) (finding that “[a] motion for reconsideration is not an avenue to relitigate the same issues and arguments upon which the court already has ruled”).

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local rules. See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for

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noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.

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1992) (dismissal for failure to comply with an order requiring amendment of complaint);

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Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply

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with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v.

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U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply

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with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal

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for lack of prosecution and failure to comply with local rules).

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In determining whether to dismiss an action for lack of prosecution, failure to

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obey a court order, or failure to comply with local rules, the court must consider several

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factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need

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to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy

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favoring disposition of cases on their merits; and (5) the availability of less drastic

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alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone,

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833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.

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In the instant case, the Court finds that the first two factors, the public’s interest in

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expeditiously resolving this litigation and the Court’s interest in managing the docket,

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weigh in favor of dismissal.

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weighs in favor of dismissal, since a presumption of injury arises from the occurrence of

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unreasonable delay in filing a pleading ordered by the court or prosecuting an action.

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See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor – public

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policy favoring disposition of cases on their merits – is greatly outweighed by the factors

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in favor of dismissal discussed herein. Finally, a court’s warning to a party that his

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failure to obey the court’s order will result in dismissal satisfies the “consideration of

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alternatives” requirement.

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Henderson, 779 F.2d at 1424. The Court’s previous orders informed Plaintiff that failure

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to timely comply with the Court’s orders would result in dismissal. (See Dkt. #2 at 2;

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Dkt. #12 at 5).

The third factor, risk of prejudice to Defendants, also

Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33;

Thus, Plaintiff had adequate warning that dismissal would result from

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his noncompliance with the Court’s order to file an amended complaint by November

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23, 2015.

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It is therefore ordered that this action is dismissed without prejudice based on

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Plaintiff’s failure to file an amended complaint in compliance with this Court’s October

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21, 2015, order.

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It is further ordered that the outstanding motions (Dkt. #14, 16, 17, 18) are denied
as moot.

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It is further ordered that the Clerk of Court shall enter judgment accordingly.

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Dated: December 2, 2015.

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UNITED STATES DISTRICT JUDGE

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