Gaines v. Hutch et al

Filing 5

ORDER. IT IS ORDERED that this action is dismissed without prejudice based on plaintiff John Gaines' failure to file a fully complete application to proceed in forma pauperis or pay the full filing fee in compliance with this court's order dated October 16, 2020. IT IS FURTHER ORDERED that the Clerk of Court will close the case and enter judgment accordingly. Signed by Judge Andrew P. Gordon on 1/6/2021. (Copies have been distributed pursuant to the NEF - HAM)

Case 2:20-cv-01908-APG-BNW Document 5 Filed 01/06/21 Page 1 of 3

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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JOHN GAINES,
aka Kenya Gaines,

ORDER
Plaintiff

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v.
HUTCH, et al.,
Defendants

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Case No. 2:20-cv-01908-APG-BNW

This action began with a pro se civil rights complaint filed under 42 U.S.C. § 1983 by a
state prisoner. On October 16, 2020, Magistrate Judge Weksler ordered plaintiff John Gaines to
file a fully complete application to proceed in forma pauperis or pay the full filing fee of $400 on
or before December 14, 2020. ECF No. 3 at 2-3. The December 14, 2020 deadline has now
expired, and Gaines has not filed a fully complete application to proceed in forma pauperis or paid
the full $400 filing fee.
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 dismissal
for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986)
(affirming dismissal for lack of prosecution and failure to comply with local rules).
In determining whether to dismiss an action for lack of prosecution, failure to obey a court
order, or failure to comply with local rules, the court must consider several factors: (1) the public’s

Case 2:20-cv-01908-APG-BNW Document 5 Filed 01/06/21 Page 2 of 3

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interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the

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

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merits; and (5) the availability of less drastic alternatives. See Thompson, 782 F.2d at 831;

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Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali,

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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,

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since a presumption of injury arises from the occurrence of unreasonable delay in filing a pleading

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ordered by the court or prosecuting an action. See Anderson v. Air West, 542 F.2d 522, 524 (9th

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Cir. 1976). The fourth factor—public policy favoring disposition of cases on their merits—is

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greatly outweighed by the factors in favor of dismissal discussed herein. Finally, a court’s warning

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to a party that his failure to obey the court’s order will result in dismissal satisfies the

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“consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-

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33; Henderson, 779 F.2d at 1424. Judge Weksler’s order expressly stated: “IT IS FURTHER

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ORDERED that, if Plaintiff does not file a fully complete application to proceed in forma pauperis

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with all three documents or pay the full $400 filing fee for a civil action on or before December

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14, 2020, the Court will dismiss this action without prejudice for Plaintiff to refile the case with

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the Court, under a new case number, when Plaintiff has all three documents needed to file a

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complete application to proceed in forma pauperis or pays the the full $400 filing fee.” ECF No.

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3 at 3. Thus, Gaines had adequate warning that dismissal would result from his noncompliance

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with Judge Weksler’s order.

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I THEREFORE ORDER that this action is dismissed without prejudice based on plaintiff

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John Gaines’ failure to file a fully complete application to proceed in forma pauperis or pay the

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full filing fee in compliance with this court’s order dated October 16, 2020.

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Case 2:20-cv-01908-APG-BNW Document 5 Filed 01/06/21 Page 3 of 3

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I FURTHER ORDER that the Clerk of Court will close the case and enter judgment
accordingly.

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IT IS SO ORDERED.

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DATED: _____________________
January 6, 2021

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ANDREW P. GORDON
UNITED STATES DISTRICT JUDGE

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