Hosmer v. Laxalt et al

Filing 22

ORDER - This action is dismissed with prejudice for failure to state a claim based on Plaintiff's failure to file an amended complaint in compliance with this Court's # 20 Order. The ## 5 , 11 Motions to proceed in forma pauperis are denied as moot. The remaining ## 18 , 19 Motions are denied as moot. The Clerk of Court shall enter judgment accordingly. This Court certifies that any in forma pauperis appeal from this order would not be taken "in good faith". Signed by Judge Robert C. Jones on 4/12/2016. (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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JEFFREY S. HOSMER,

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Plaintiff,
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v.
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ADAM PAUL LAXALT et al.,
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Defendants.
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___________________________________ )

3:15-cv-00456-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 March 4, 2016, this Court issued an order dismissing the complaint with leave
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to amend and directed Plaintiff to file an amended complaint within thirty days. (ECF No. 20
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at 14). The thirty-day period has now expired, and Plaintiff has not filed an amended
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complaint. Instead, Plaintiff has written a letter to the Court which is non-responsive to the
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screening order. (ECF No. 21). In that letter, Plaintiff informs the Clerk’s Office that they did
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not send him a copy of everything he had filed with the Court and that the Clerk’s Office needs
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to send him everything that he has filed in this case “and it’s numerous.” (Id. at 1). Plaintiff
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then attaches his original complaint and the Court’s screening order to the letter. (See id. at
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2-162).
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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 fails to file an amended complaint curing the deficiencies outlined

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in this order, this action shall be dismissed with prejudice for failure to state a claim.” (ECF No.

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20 at 14). Thus, Plaintiff had adequate warning that dismissal would result from his
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noncompliance 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 with prejudice for failure to state a

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claim based on Plaintiff’s failure to file an amended complaint in compliance with this Court’s

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March 4, 2016, order.

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It is further ordered that the motions to proceed in forma pauperis (ECF No. 5, 11) are
denied as moot.1

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It is further ordered that the remaining motions (ECF No. 18, 19) are denied as moot.

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

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It is further ordered that this Court certifies that any in forma pauperis appeal from this

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order would not be taken “in good faith” pursuant to 28 U.S.C. § 1915(a)(3).
DATED: This 12th day of April, 2016.
DATED: This _____ day of April, 2016.

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_________________________________
UNITED STATES DISTRICT JUDGE

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In the screening order, the Court found that Plaintiff had filed a complete application
to proceed in forma pauperis when looking at the documents filed in ECF No. 5 and 11. (ECF
No. 20 at 14).
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