Cerasoli v. Lombardo et al

Filing 7

ORDER - This action is dismissed without prejudice based on Plaintiff's failure to file an amended complaint in compliance with this Court's # 3 Order. The # 1 Motion to proceed IFP is denied as moot. Clerk shall enter judgment accordingly. Signed by Judge Robert C. Jones on 1/26/2016. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DINO CERASOLI,

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Plaintiff,
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v.
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SHERIFF JOE LOMBARDO et al.,
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Defendants.
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___________________________________ )

3:15-cv-00195-RCJ-VPC
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 November 13, 2015, this Court issued an order dismissing the complaint with
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leave to amend and directed Plaintiff to file an amended complaint within thirty days. (ECF
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No. 3 at 6-7). The thirty-day period has now expired, and Plaintiff has not filed an amended
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complaint 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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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 an amended complaint within thirty days expressly stated: “IT IS FURTHER

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ORDERED that if Plaintiff chooses not to file an amended complaint curing the stated

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deficiencies of the complaint, this action shall be dismissed without prejudice.” (ECF No. 3 at

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7). Thus, Plaintiff had adequate warning that dismissal would result from his noncompliance

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with the Court’s order to file an amended complaint within 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 an amended complaint in compliance with this Court’s November 13, 2015, order.

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It is further ordered that the motion to proceed in forma pauperis (ECF No. 1) is denied

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as moot.
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It is further ordered that the Clerk of Court shall enter judgment accordingly.

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Dated: This 26th day of January, 2016.
DATED: This _____ day of December, 2015.

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_________________________________
UNITED STATES DISTRICT JUDGE

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