Vidal v. Dacken et al

Filing 5

ORDER that this action is DISMISSED without prejudice to Vidal's ability to file his claims again in a new, separate case because of his failure to comply with the 4 Order. The Clerk of Court is directed to enter judgment accordingly and close this case. Signed by Judge Jennifer A. Dorsey on 12/13/2017. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Francisco Vidal,

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Plaintiff

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Order Dismissing Case

v.

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2:17-cv-02729-JAD-CWH

Dacken, et al.,

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Defendants

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Pro se plaintiff Francisco Vidal brings this civil-rights action against several correctional

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officers and other personnel at the Southern Desert Correctional Center for allegedly throwing

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him on the back of a flatbed golf cart, pinning their knees into his back, causing him to suffer an

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anxiety-induced asthma attack, failing to provide “breathing treatment,” and putting him on

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suicide watch after he stuck his head through the bars of his bunk and hanged.1 Vidal was

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previously ordered to file a completed application to proceed in forma pauperis or pay the filing

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fee within 30 days.2 That 30-day deadline has now expired, and Vidal has failed to comply or

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otherwise respond 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

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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 In determining whether to

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ECF No. 1-1.

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ECF No. 4.

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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,

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dismiss an action for lack of prosecution, failure to obey a court order, or failure to comply with

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local rules, the court must consider several factors: (1) the public’s interest in expeditious

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

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defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the

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availability of less drastic alternatives.5

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I find that the first two factors weigh in favor of dismissal. The risk-of-prejudice factor

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also weighs in favor of dismissal because 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.6 The fourth

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factor is greatly outweighed by the factors in favor of dismissal, and a court’s warning that failure

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to comply with a court order will result in dismissal satisfies the “consideration of alternatives”

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requirement.7 When Vidal was ordered to file a pauper application or pay the filing fee within 30

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days, he was warned that failure to do so would “result in dismissal of this action,”8 and that

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warning was sufficient.

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Accordingly, IT IS HEREBY ORDERED that this action is DISMISSED without

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prejudice to Vidal’s ability to file his claims again in a new, separate case because of his failure

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to comply with my October 30, 2017, order.

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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 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, 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. 4 at 2.

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The Clerk of Court is directed to enter judgment accordingly and CLOSE THIS
CASE.
DATED: December 13, 2017.

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_______________________________
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U.S. District Judge Jennifer A. Dorsey
S. i r
S. District Judge Jennifer
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