Houston v. Martin et al

Filing 9

ORDER. IT IS ORDERED that this action is dismissed without prejudice based on Plaintiffs failure to file an application to proceed in forma pauperis for non- prisoners or pay the full filing fee in compliance with this Courts 9/1/2020, Order. Signed by Judge Gloria M. Navarro on 10/14/2020., Case terminated. (Copies have been distributed pursuant to the NEF - JQC)

Case 2:19-cv-01706-GMN-EJY Document 9 Filed 10/14/20 Page 1 of 3

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ERNEST HOUSTON,
Plaintiff,

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Case No. 2:19-cv-01706-GMN-EJY
ORDER

v.
MARTIN et al.,
Defendants.

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This action began with a pro se civil rights complaint filed pursuant to 42 U.S.C. §
1983 by a former state prisoner. On September 1, 2020, this Court issued an order
denying the application to proceed in forma pauperis for prisoners as moot because
Plaintiff was no longer incarcerated. (ECF No. 6 at 1). The Court ordered Plaintiff to file
a fully complete application to proceed in forma pauperis for non-prisoners or pay the full
filing fee of $400.00 within 30 days from the date of that order. (Id.) The 30-day period
has now expired, and Plaintiff has not filed an application to proceed in forma pauperis
for non-prisoners, paid the full filing fee, or otherwise responded to the Court’s order.
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. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831
(9th Cir. 1986). 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.
See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (affirming dismissal for
noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.
1992) (affirming dismissal for failure to comply with an order requiring amendment of
complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (affirming 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) (affirming

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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) (affirming dismissal for lack of prosecution and failure to comply with

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

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

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Here, the Court finds that the first two factors, the public’s interest in expeditiously

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resolving this litigation and the Court’s interest in managing the docket, weigh in favor of

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

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dismissal, since a presumption of injury arises from the occurrence of unreasonable delay

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in filing a pleading ordered by the court or prosecuting an action. See Anderson v. Air

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West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor—public policy favoring

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

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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 application to proceed in forma

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pauperis for non-prisoners or pay the full filing fee within 30 days expressly stated: “It is

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further ordered that, if Plaintiff fails to timely file an application to proceed in forma

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pauperis for non-prisoners or pay the full fulling fee of $400, the Court will dismiss this

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case without prejudice.” (ECF No. 6 at 7). Thus, Plaintiff had adequate warning that

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

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to proceed in forma pauperis for non-prisoners or pay the full filing fee within 30 days.

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Case 2:19-cv-01706-GMN-EJY Document 9 Filed 10/14/20 Page 3 of 3

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

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Plaintiff’s failure to file an application to proceed in forma pauperis for non-prisoners or

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pay the full filing fee in compliance with this Court’s September 1, 2020, order.

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It is further ordered that the Clerk of Court will close the case and enter judgment
accordingly.

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DATED THIS 14 day of October 2020.
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Gloria M. Navarro, Judge
United States District Court

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