Patterson v. Cox et al

Filing 7

ORDER denying as moot 4 Motion/Application for Leave to Proceed in forma pauperis.; Case terminated. Signed by Judge Richard F. Boulware, II on 11/16/2016. (Copies have been distributed pursuant to the NEF - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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TOMAREY PATTERSON,

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Plaintiff,

Case No. 2:15-cv-02006-RFB-PAL
ORDER

v.
JAMES G. COX et al.,
Defendants.

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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 August 17, 2016, the Court issued an order dismissing the complaint

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with leave to amend and directed Plaintiff to file an amended complaint within thirty days.

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(ECF No. 5 at 9). The thirty-day period has now expired, and Plaintiff has not filed an

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amended complaint or otherwise responded to the Court’s order.

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the inherent power to control their dockets and “[i]n the exercise of that power, they may

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impose sanctions including, where appropriate . . . dismissal” of a case. Thompson v.

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

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dismiss an action, with prejudice, based on a party’s failure to prosecute an action, failure

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to obey a court order, or failure to comply with local rules. See Ghazali v. Moran, 46 F.3d

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52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet,

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963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order

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requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir.

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1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court

District courts have

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apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987)

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(dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421,

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1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local

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rules).

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

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

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

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

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

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Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130;

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

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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. See

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

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

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

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the court’s order will result in dismissal satisfies the “consideration of alternatives”

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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 an amended complaint within

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thirty days expressly stated: “It is further ordered that if Plaintiff fails to file an amended

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complaint curing the deficiencies outlined in this order, this action shall be dismissed with

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prejudice for failure to state a claim.” (ECF No. 5 at 9). Thus, Plaintiff had adequate

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warning that dismissal would result from his noncompliance with the Court’s order to file

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an amended complaint within thirty days.

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IT IS THEREFORE ORDERED that this action is dismissed without prejudice

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

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August 17, 2016, order and for failure to state a claim.

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IT IS FURTHER ORDERED that the motion to proceed in forma pauperis (ECF
No. 4) is denied as moot.
IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment
accordingly.

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DATED this 16th day of November 2016.

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RICHARD F. BOULWARE II
UNITED STATES DISTRICT JUDGE

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