Sudberry v. Baca et al

Filing 10

ORDER DISMISSING CASE without prejudice based on Plaintiff's failure to file another IFP application or pay the full filing fee in compliance with 7 Order; denying as moot 6 Motion for Appointment of Counsel; directing Clerk to enter judgment accordingly. Signed by Judge Robert C. Jones on 3/27/2015. (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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DENNIS K. SUDBERRY,

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Plaintiff,
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v.
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ISIDRO BACA et al.,
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Defendants.
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___________________________________ )

3:15-cv-14-RCJ-WGC
ORDER

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This action is a pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983 by a state

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prisoner. On February 13, 2015, this Court issued an order denying the application to proceed

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in forma pauperis, without prejudice, because the application was incomplete. (ECF No. 7 at

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1-2). The Court ordered Plaintiff to file a fully complete application to proceed in forma

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pauperis or pay the full filing fee of $400.00 within thirty days from the date of that order. (Id.

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at 2). The thirty-day period has now expired, and Plaintiff has not filed another application to

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proceed in forma pauperis, paid the full filing fee1, or otherwise responded to the Court’s order.

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

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that power, they may impose sanctions including, where appropriate . . . dismissal” of a case.

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Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court

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may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, failure

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to obey a court order, or failure to comply with local rules. See Ghazali v. Moran, 46 F.3d 52,

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53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963

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On March 11, 2015, Plaintiff submitted a $5.00 check as the filing fee for his two civil
rights cases, 3:15-cv-13-RCJ-WGC and 3:15-cv-14-RCJ-WGC. (ECF No. 9). The Court
applied the partial fee to case 3:15-cv-13-RCJ-WGC. (Id.).

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F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring

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amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal

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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) (dismissal for

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

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

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

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court order, or failure to comply with local rules, the court must consider several factors: (1)

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

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docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of

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cases on their merits; and (5) the availability of less drastic alternatives. Thompson, 782 F.2d

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at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-

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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, weigh

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in favor of 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 in

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filing a pleading ordered by the court or prosecuting an action. See Anderson v. Air West, 542

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F.2d 522, 524 (9th Cir. 1976). The fourth factor – public policy favoring disposition of cases

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on their merits – is greatly outweighed by the factors in favor of dismissal discussed herein.

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Finally, a court’s warning to a party that his failure to obey the court’s order will result in

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dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262;

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Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The Court’s order requiring

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Plaintiff to file another application to proceed in forma pauperis or pay the full filing fee within

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thirty days expressly stated: “IT IS FURTHER ORDERED that if Plaintiff does not timely

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comply with this order, dismissal of this action may result.” (ECF No. 7 at 2). Thus, Plaintiff

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had adequate warning that dismissal would result from his noncompliance with the Court’s

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order to file another application to proceed in forma pauperis or pay the full filing fee within
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thirty days.

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

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failure to file another application to proceed in forma pauperis or pay the full filing fee in

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compliance with this Court’s February 13, 2015, order.

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It is further ordered that the motion for appointment of counsel (ECF No. 6) is denied
as moot.
It is further ordered that the Clerk of Court shall enter judgment accordingly.

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Dated this 27th day of March, 2015.
DATED: This _____ day of March, 2015.

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_________________________________
United States District Judge

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