Zielinski v. Frontierland Communications et al

Filing 7

ORDER DISMISSING CASE without prejudice based on Plaintiff's failure to pay the filing fee or file a renewed and complete IFP application. Signed by Judge Miranda M. Du on 11/7/2014. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JOHN ZIELINSKI, JR.,

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Case No. 3:12-cv-00127-MMD-WGC
Plaintiff,

ORDER

v.

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FRONTIERLAND COMMUNICATIONS, et
al.,

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Defendants.

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On March 7, 2012, Plaintiff filed an incomplete application to proceed in forma

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pauperis (dkt. no. 1) and civil rights complaint (dkt. no. 1-1.) The Court issued an order

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on August 9, 2013, directing Plaintiff to file a complete application or pay the filing fee

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(“the Order”) (dkt. no. 6.) The Court provided Plaintiffs with thirty (30) days to comply.

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The thirty-day period has expired, and Plaintiff has not paid the filing fee, filed a

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fully completed application to proceed in forma pauperis, or otherwise responded to the

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Court’s Order.

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District courts have the inherent power to control their dockets and “[i]n the

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exercise of that power, they may impose sanctions including, where appropriate . . .

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dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829,

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831 (9th Cir. 1986). In determining whether to dismiss an action for lack of prosecution,

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failure to obey a court order, or failure to comply with local rules, the court must

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consider several factors: (1) the public’s interest in expeditious resolution of litigation;

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(2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4)

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

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less drastic alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24;

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Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.

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In the instant case, the Court finds that the first two factors, the public’s interest in

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expeditiously resolving this litigation and the Court’s interest in managing the docket,

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

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in favor of dismissal, since 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.

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See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor ─ public

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policy favoring disposition of cases on their merits ─ is greatly outweighed by the factors

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in favor of dismissal discussed herein. Finally, a court’s warning to a party that his

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failure to obey the court’s order will result in dismissal satisfies the “consideration of

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alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33;

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Henderson, 779 F.2d at 1424.

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The Court’s Order expressly stated: “In order to maintain this action, Plaintiff will

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either need to pay the $400 filing fee or submit a renewed and completed application to

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proceed in forma pauperis that is signed and demonstrates, with particularity, his

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inability to pay the filing fee within THIRTY DAYS OF THE DATE OF THIS ORDER.

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Plaintiff is cautioned that a failure to pay the filing fee or submit a renewed application to

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proceed in forma pauperis will result in dismissal of this action.” (Dkt. no. 6 at 2.) 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 pay the filing fee or file a renewed and complaint application to

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proceed in forma pauperis within thirty (30) days.

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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 pay the filing fee or file a renewed and complete application to

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proceed in forma pauperis in compliance with this Court’s August 9, 2013, Order.

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DATED THIS 7th day of November 2014.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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