Viox v. Porter et al

Filing 31

ORDER dismissing without prejudice this action for failure to file an amended complaint and for failure to state a claim; denying as moot 1 IFP application; certifying that any IFP appeal from this order would not be taken "in good faith" pursuant to 28 USC 1915(a)(3); directing Clerk to enter judgment accordingly. Signed by Judge Miranda M. Du on 4/28/2015. (Copies have been distributed pursuant to the NEF - KR)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

DISTRICT OF NEVADA

7

***

8

CHARLES DEAN VIOX,

9

Case No. 3:14-cv-00357-MMD-WGC
Plaintiff,

ORDER

v.
10
NANCY PORTER et al.,
11
Defendants.
12
13
14

On October 20, 2014, this Court entered a screening order deferring a decision

15

on the application to proceed in forma pauperis. (Dkt. no. 8 at 5.) In the screening order,

16

the Court dismissed the complaint in its entirety with respect to the allegations

17

challenging Plaintiff’s conviction, appeal, and habeas proceedings but granted Plaintiff

18

leave to amend his complaint with respect to the allegations related to his incarceration

19

at the Northern Nevada Correctional Center (“NNCC”). (Id.) The Court granted Plaintiff

20

thirty (30) days from the date of that order to file an amended complaint. (Id.) The Court

21

further noted that it would dismiss the case without prejudice if Plaintiff failed to file an

22

amended complaint about his conditions of confinement. (Id.)

23

On October 29, 2014, Plaintiff filed a notice of appeal as to this Court’s screening

24

order. (Dkt. no. 12.) On November 13, 2014, the Ninth Circuit Court of Appeals

25

dismissed the appeal for lack of jurisdiction because the screening order was not final or

26

appealable. (Dkt. no. 15.)

27

On November 21, 2014, this Court entered an order directing Plaintiff to file his

28

amended complaint within thirty (30) days from the date of that order. (Dkt. no. 17 at 3.)

1

The Court reiterated that if Plaintiff failed to file an amended complaint, the Court would

2

dismiss the action without prejudice. (Id.)

3

On November 26, 2014, Plaintiff filed an interlocutory notice of appeal as to the

4

Court’s screening order. (Dkt. no. 19.) On February 6, 2015, Plaintiff filed a petition for

5

writ of mandamus with the Ninth Circuit. (Dkt. no. 27.) On March 24, 2015, the Ninth

6

Circuit denied Plaintiff’s petition and denied all other pending motions as moot. (Dkt. no.

7

28.)

8

On March 26, 2015, this Court granted Plaintiff one final opportunity to amend his

9

complaint within thirty (30) days from the date of entry of that order. (Dkt. no. 29 at 3.)

10

The Court informed Plaintiff that if he failed to file an amended complaint about his

11

conditions of confinement, the Court would dismiss the action without prejudice. (Id.)

12

The Court also informed Plaintiff that there would be no further extensions. (Id.)

13

On April 13, 2015, Plaintiff filed an “amendment” which stated, “The conditions of

14

confinement were as follows: 36 months to 156 months in the Nevada state prison. A

15

$25.00 court assessment fee.” (Dkt. no. 30 at 1.) The Court finds that Plaintiff has failed

16

to file an amended complaint in compliance with this Court’s March 26, 2015 order.

17

Additionally, even if this “amendment” was construed as an amended complaint, these

18

two sentences fail to state a claim for conditions of confinement.

19

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

20

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

21

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

22

831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s

23

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

24

local rules. See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for

25

noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.

26

1992) (dismissal for failure to comply with an order requiring amendment of complaint);

27

Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply

28

with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v.
2

1

U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply

2

with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal

3

for lack of prosecution and failure to comply with local rules).

4

In determining whether to dismiss an action for lack of prosecution, failure to

5

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

6

factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need

7

to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy

8

favoring disposition of cases on their merits; and (5) the availability of less drastic

9

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

10

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

11

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

12

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

13

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

14

in favor of dismissal, since a presumption of injury arises from the occurrence of

15

unreasonable delay in filing a pleading ordered by the court or prosecuting an action.

16

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

17

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

18

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

19

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

20

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

21

Henderson, 779 F.2d at 1424. The Court’s order requiring Plaintiff to file an amended

22

complaint within thirty (30) days expressly stated: “It is further ordered that if Plaintiff

23

fails to file an amended complaint about his conditions of confinement within thirty (30)

24

days from the date of entry of this order, this action shall be dismissed without

25

prejudice.” (Dkt. no. 29 at 3.) Thus, Plaintiff had adequate warning that dismissal would

26

result from his noncompliance with the Court’s order to file an amended complaint within

27

thirty (30) days.

28

///
3

1

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

2

Plaintiff’s failure to file an amended complaint in compliance with this Court’s March 26,

3

2015, order and for failure to state a claim.

4
5
6
7
8

It is further ordered that the motion to proceed in forma pauperis (dkt. no. 1) is
denied as moot.
It is further ordered that this Court certifies that any in forma pauperis appeal
from this order would not be taken “in good faith” pursuant to 28 U.S.C. § 1915(a)(3).
It is further ordered that the Clerk of Court shall enter judgment accordingly.

9
10

DATED THIS 28th day of April 2015.

11
12

MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4