Tolliver v. Nevada Department of Corrections et al

Filing 22

ORDER DISMISSING CASE. Signed by Judge Jennifer A. Dorsey on 9/15/2017. (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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George A. Toliver,

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Plaintiff

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Order Dismissing Case

v.

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2:16-cv-01807-JAD-NJK

Nevada Department of Corrections, et al.,

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Defendant

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Former state prisoner, George A. Toliver, filed a civil rights complaint under 42 U.S.C. §

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1983, and on August 4, 2017, I denied his application to proceed in forma pauperis for prisoners

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as moot because he was no longer incarcerated.1 I ordered Toliver to file a fully complete

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application to proceed in forma pauperis for non-prisoners or pay the full filing fee of $400.00 no

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later than September 5, 2017.2 The deadline has now expired, and he has not filed an application

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to proceed in forma pauperis for non-prisoners, paid the full filing fee, or otherwise responded to

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my order.

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

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that power, they may impose sanctions including, where appropriate . . . dismissal” of a case.3 A

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

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failure to obey a court order, or failure to comply with local rules.4

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ECF No. 21 at 2.

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Id.

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

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See Ghazali v. Moran, 46 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with
local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to
comply with an order requiring amendment of complaint); Carey v. King, 856 F.2d 1439,
1440–41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring pro se
plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130
(9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779
F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with

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

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

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

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(3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on

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

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I find that the first two factors weigh in favor of dismissal. The third factor also weighs

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in favor of dismissal because a presumption of injury arises from an unreasonable delay in filing

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a pleading ordered by the court or prosecuting an action.6 The fourth factor is greatly outweighed

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by the factors in favor of dismissal. 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” requirement.7

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In my order requiring Toliver to file an application to proceed in forma pauperis for non-

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prisoners, I expressly warned him, “IT IS FURTHER ORDERED that if Plaintiff does not timely

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comply with this order, dismissal of this action may result.”8

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It is therefore ordered that this action is dismissed with prejudice based on Toliver’s

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failure to file an application to proceed in forma pauperis for non-prisoners or pay the full filing

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fee in compliance with my August 4, 2017, order.

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The Clerk of Court is directed to enter judgment accordingly and CLOSE THIS
CASE.

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DATED: September 15, 2017.

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_______________________________
_______ ____________
_ ____ __ _ __
_
Jennifer A. Dorsey
Jennifer Dorsey
nn r
e
United States District Judge
United States District Jud
ited
st
strict

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local rules).
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Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 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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See Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976).

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

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ECF No. 21 at 2.

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