Toliver v. Las Vegas Metropolitan Police Department et al

Filing 4

ORDER that this action is DISMISSED without prejudice based on Plaintiff's failure to file another application to proceed in forma pauperis. Signed by Chief Judge Gloria M. Navarro on 6/2/2015. (Copies have been distributed pursuant to the NEF - PS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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GEORGE A. TOLIVER,

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Plaintiff,
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v.
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LAS VEGAS METROPOLITAN POLICE
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DEPARTMENT et al.,
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Defendants.
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_______________________________________ )

2:15-cv-633-GMN-PAL
ORDER

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

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prisoner. On April 9, 2015, this Court issued an order denying the application to proceed in forma

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pauperis, without prejudice, because the application was incomplete. (ECF No. 2 at 1-2). The Court

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ordered Plaintiff to file a fully complete application to proceed in forma pauperis or pay the full

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filing fee of $400.00 within thirty days from the date of that order. (Id. at 2). The thirty-day period

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has now expired, and Plaintiff has not filed another application to proceed in forma pauperis, paid

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the full filing fee, or otherwise responded to the Court’s order.

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

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power, they may impose sanctions including, where appropriate . . . dismissal” of a case. Thompson

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v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an

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action, with prejudice, based on a party’s failure to prosecute an action, failure to obey a court order,

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or failure to comply with local rules. See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995)

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(dismissal for 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); Carey v.

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

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requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833

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F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v.

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Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to

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comply with local rules).

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

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order, or failure to comply with local rules, the court must consider several factors: (1) the public’s

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interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk

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of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and

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(5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at

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1423-24; Malone, 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, weigh in favor

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of dismissal. The third factor, risk of prejudice to Defendants, also weighs in favor of dismissal,

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since a presumption of injury arises from the occurrence of unreasonable delay in filing a pleading

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ordered by the court or prosecuting an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir.

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1976). The fourth factor – public policy favoring disposition of cases on their merits – is greatly

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outweighed by the factors in favor of dismissal discussed herein. Finally, a court’s warning to a

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

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alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779

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F.2d at 1424. The Court’s order requiring Plaintiff to file another application to proceed in forma

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pauperis or pay the full filing fee within thirty days expressly stated: “IT IS FURTHER ORDERED

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that if Plaintiff does not timely comply with this order, dismissal of this action may result.” (ECF

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No. 2 at 2). Thus, Plaintiff had adequate warning that dismissal would result from his

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noncompliance with the Court’s order to file another application to proceed in forma pauperis or pay

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the full filing fee within thirty days.

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IT IS THEREFORE ORDERED that this action is DISMISSED without prejudice based

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on Plaintiff’s failure to file another application to proceed in forma pauperis or pay the full filing fee

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in compliance with this Court’s April 9, 2015, Order.

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IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment accordingly.

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DATED this 2nd day of June, 2015.

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_________________________________
Gloria M. Navarro, Chief Judge
United States District Court

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