Aubert v. Williams Sr

Filing 4

ORDER DISMISSING CASE Without Prejudice. Signed by Judge Jennifer A. Dorsey on 3/29/2018. (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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4 THAD AUBERT,
Plaintiff

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6 v.

Case No.: 2:16-cv-02982-JAD-PAL

Order Dismissing Case

7 BRIAN WILLIAMS SR.,
Defendant

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Plaintiff Thad Aubert submitted a letter to the court seeking clarification on some
conflicting advice he received from fellow inmates.1 On February 5, 2018, I directed Aubert to
submit a complaint and to file a fully complete application to proceed in forma pauperis or pay
the $400 filing fee by March 7, 2018.2 I expressly warned him that his failure to comply with or
otherwise respond to this order would result in dismissal without further prior notice.3 The
deadline has passed, and Aubert has done neither.

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District courts have the inherent power to control their dockets and “[i]n the exercise of
that power, they may impose sanctions including, where appropriate . . . dismissal” of a case.4 A
court may dismiss an action with prejudice based on a party’s failure to prosecute an action,
failure to obey a court order, or failure to comply with local rules.5 In determining whether to

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ECF No. 1 (letter).

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ECF No. 3 (order).

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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
25 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–
26 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.
27 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 local rules).
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1 dismiss an action for lack of prosecution, failure to obey a court order, or failure to comply with
2 local rules, the court must consider several factors: (1) the public’s interest in expeditious
3 resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the
4 defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the
5 availability of less drastic alternatives.6
I find that the first two factors—the public’s interest in expeditiously resolving the

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7 litigation and the court’s interest in managing the docket—weigh in favor of dismissing this case.
8 The risk-of-prejudice factor also weighs in favor of dismissal because a presumption of injury
9 arises from the occurrence of unreasonable delay in filing a pleading ordered by the court or
10 prosecuting an action.7 The fourth factor is greatly outweighed by the factors in favor of
11 dismissal, and a court’s warning to a party that his failure to obey the court’s order will result in
12 dismissal satisfies the consideration-of-alternatives requirement.8 Aubert was warned that his
13 case would be dismissed without prejudice if he did not submit a complaint and file an
14 application to proceed in forma pauperis or pay the full filing fee.9 So, Aubert had adequate
15 warning that his failure to submit a complaint and to pay the fee or submit a completed
16 application would result in this case’s dismissal.
Accordingly, IT IS HEREBY ORDERED that this action is DISMISSED without

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18 prejudice based on Aubert’s failure to submit a complaint and to file an application to proceed in
19 forma pauperis or pay the full filing fee in compliance with this Court’s February 5, 2018, order;
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Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423–24; Malone, 833 F.2d at 130;
25 Ferdik, 963 F.2d at 1260–61; Ghazali, 46 F.3d at 53.
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See Anderson v. Air West, 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; Henderson, 779 F.2d at 1424.

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ECF No. 3 (order).

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The Clerk of Court is directed to ENTER JUDGMENT accordingly and CLOSE THIS

2 CASE.
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DATED: 3-29-18
______________________
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istrict Judge Jennifer A. Dorsey
ic
ic ud
if
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U.S. District Judge Jennifer A. D

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