Wilson v. Cox et al
Filing
24
ORDER. IT IS ORDERED that this action is DISMISSED without prejudice based on plaintiff's failure to file an application to proceed in forma pauperis for non-prisoners or pay the full filing fee in compliance with this court's 9/1/2016, Order. It is further ordered that the clerk of court shall enter judgment accordingly. Signed by Judge James C. Mahan on 4/26/2018. (Copies have been distributed pursuant to the NEF - MR)
1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
DISTRICT OF NEVADA
8
***
9
STEVEN WILSON,
10
Plaintiff,
11
12
Case No. 2:15-cv-00625-JCM-CWH
ORDER
v.
JAMES G. COX et al.,
13
Defendants.
14
15
16
This action is a pro se civil rights first amended complaint filed pursuant to 42
17
U.S.C. § 1983 by a former state prisoner. On September 1, 2016, this court issued an
18
order denying the application to proceed in forma pauperis for prisoners as moot because
19
plaintiff was no longer incarcerated. (ECF No. 22 at 2). The court ordered plaintiff to file
20
a fully complete application to proceed in forma pauperis for non-prisoners or pay the full
21
filing fee of $400.00 within thirty (30) days from the date of that order. (Id.) The thirty-
22
day period has now expired, and plaintiff has not filed an application to proceed in forma
23
pauperis for non-prisoners, paid the full filing fee, or otherwise responded to the court’s
24
order.
25
District courts have the inherent power to control their dockets and “[i]n the
26
exercise of that power, they may impose sanctions including, where appropriate . . .
27
dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831
28
(9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure
1
to prosecute an action, failure to obey a court order, or failure to comply with local rules.
2
See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance
3
with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal
4
for failure to comply with an order requiring amendment of complaint); Carey v. King, 856
5
F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring
6
pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833
7
F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson
8
v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and
9
failure to comply with local rules).
10
In determining whether to dismiss an action for lack of prosecution, failure to obey
11
a court order, or failure to comply with local rules, the court must consider several factors:
12
(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to
13
manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring
14
disposition of cases on their merits; and (5) the availability of less drastic alternatives.
15
Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130;
16
Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.
17
In the instant case, the court finds that the first two factors, the public’s interest in
18
expeditiously resolving this litigation and the court’s interest in managing the docket,
19
weigh in favor of dismissal. The third factor, risk of prejudice to defendants, also weighs
20
in favor of dismissal, since a presumption of injury arises from the occurrence of
21
unreasonable delay in filing a pleading ordered by the court or prosecuting an action. See
22
Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor – public policy
23
favoring disposition of cases on their merits – is greatly outweighed by the factors in favor
24
of dismissal discussed herein. Finally, a court’s warning to a party that his failure to obey
25
the court’s order will result in dismissal satisfies the “consideration of alternatives”
26
requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779
27
F.2d at 1424. The court’s order requiring plaintiff to file an application to proceed in forma
28
pauperis for non-prisoners or pay the full filing fee within thirty (30) days expressly stated:
-2-
1
“IT IS FURTHER ORDERED that if [p]laintiff does not timely comply with this order,
2
dismissal of this action may result.” (ECF No. 22 at 2). Thus, plaintiff had adequate
3
warning that dismissal would result from his noncompliance with the court’s order to file
4
an application to proceed in forma pauperis for non-prisoners or pay the full filing fee
5
within thirty (30) days.
6
It is therefore ordered that this action is dismissed without prejudice based on
7
plaintiff’s failure to file an application to proceed in forma pauperis for non-prisoners or
8
pay the full filing fee in compliance with this court’s September 1, 2016, order.
9
It is further ordered that the clerk of court shall enter judgment accordingly.
10
11
26th
DATED THIS ____ day of April 2018.
12
13
UNITED STATES DISTRICT JUDGE
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?