Nerez III v. Howell et al

Filing 5

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 or pay the full filing fee in compliance with this Courts 3/30/16, order.It is further ordered that the Clerk of Court shall enter judgment accordingly. Signed by Judge Andrew P. Gordon on 5/9/16. (Copies have been distributed pursuant to the NEF - PS)

1
2
3

UNITED STATES DISTRICT COURT

4

DISTRICT OF NEVADA

5

***

6

MANUEL NEREZ III,

7

Case No. 2:16-cv-00333-APG-NJK
Plaintiff,

8

v.

9

ORDER

HOWELL et al.,

10

Defendants.

11
12
13

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

14

a former state prisoner.1

15

Plaintiff to file a fully complete application to proceed in forma pauperis for non-

16

prisoners or pay the full filing fee of $400.00 on or before April 29, 2016. (Dkt. #4 at 2).

17

The deadline has now expired, and Plaintiff has not filed an application to proceed in

18

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

On March 30, 2016, this Court issued an order directing

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

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

27

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

28
1

Plaintiff was incarcerated at the time he initiated this lawsuit. (Dkt. #1-1 at 1).

1

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

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

weigh in favor of dismissal.

15

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

16

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

17

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

18

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

19

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

20

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

21

alternatives” requirement.

22

Henderson, 779 F.2d at 1424. The Court’s order requiring Plaintiff to file an application

23

to proceed in forma pauperis or pay the full filing fee by April 29, 2016, expressly stated:

24

“IT IS FURTHER ORDERED that if Plaintiff does not timely comply with this order,

25

dismissal of this action may result.” (Dkt. #4 at 2). Thus, Plaintiff had adequate warning

26

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

27

application to proceed in forma pauperis or pay the full filing fee on or before April 29,

28

2016.

The third factor, risk of prejudice to Defendants, also

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

-2-

1

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

2

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

3

fee in compliance with this Court’s March 30, 2016, order.

4

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

5

Dated: May 9, 2016.

6
7

UNITED STATES DISTRICT JUDGE

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-3-