Cepeda v. Munoz et al

Filing 9

ORDER DISMISSING CASE without prejudice. The Clerk is intructed to enter Judgment and close the case. Signed by Judge Richard F. Boulware, II on 11/16/2020. (Copies have been distributed pursuant to the NEF - DRS)

Case 2:20-cv-00359-RFB-NJK Document 9 Filed 11/16/20 Page 1 of 3

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MICHAEL GERARD CEPEDA,

Case No. 2:20-cv-00359-RFB-NJK

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Plaintiff
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ORDER

v.
MUNOZ et al.,
Defendants

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This action began with a pro se civil rights complaint filed under 42 U.S.C. § 1983

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by a former county inmate. On October 14, 2020, this Court issued an order directing

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Plaintiff to file his updated address and a non-prisoner application to proceed in forma

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pauperis with this Court by November 13, 2020. (ECF No. 7). The deadline has now

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expired, and Plaintiff has not filed his updated address, filed a non-prisoner application to
proceed in forma pauperis, 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

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

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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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Case 2:20-cv-00359-RFB-NJK Document 9 Filed 11/16/20 Page 2 of 3

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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
dismissal, since a presumption of injury arises from the occurrence of unreasonable delay
in filing a pleading ordered by the court or prosecuting an action. See Anderson v. Air
West, 542 F.2d 522, 524 (9th Cir. 1976).

The fourth factor—public policy favoring

disposition of cases on their merits—is greatly outweighed by the factors in favor of
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”
requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779
F.2d at 1424. The Court’s order requiring Plaintiff to file his updated address and file a
non-prisoner application to proceed in forma pauperis with the Court on or before
November 13, 2020, expressly stated: “It is further ordered that, if Plaintiff fails to timely
update his address and submit an application to proceed in forma pauperis by a non-

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prisoner, the Court will dismiss this case without prejudice.” (ECF No. 7 at 3). Thus,

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Plaintiff had adequate warning that dismissal would result from his noncompliance with

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the Court’s order to file his updated address and a non-prisoner application to proceed in

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forma pauperis on or before November 13, 2020.

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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 updated address and a non-prisoner application to proceed in

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forma pauperis in compliance with this Court’s October 14, 2020, order.

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Case 2:20-cv-00359-RFB-NJK Document 9 Filed 11/16/20 Page 3 of 3

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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 16th day of November 2020.

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RICHARD F. BOULWARE, II
UNITED STATES DISTRICT JUDGE

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