DuShane v. Nevada Department of Corrections et al

Filing 16

ORDERED this action is dismissed without prejudice based on Plaintiff's failure to file an updated address in compliance with this Court's order (ECF No. 13 ). The motion to proceed in forma pauperis (ECF No. 1 ) is denied as moot. The Clerk shall enter judgment accordingly. Signed by Judge Miranda M. Du on 10/12/2016. (Copies have been distributed pursuant to the NEF - DRM)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

DISTRICT OF NEVADA

7
8

***
JASEN LYNN DUSHANE,

9
10
11
12
13

Case No. 3:15-cv-00501-MMD-WGC
Plaintiff,

ORDER

v.
NEVADA DEPARTMENT OF
CORRECTIONS et al.,
Defendants.

14

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

15

a state prisoner. On August 31, 2016, the Court issued an order directing Plaintiff to file

16

an updated address with the Court within thirty (30) days. (ECF No. 13 at 2). The thirty-

17

day period has now expired, and Plaintiff has not filed an updated address with the

18

Court or otherwise responded to the Court’s order.

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.

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 updated

22

address with the Court within thirty (30) days expressly stated: “It is further ordered that,

23

if Plaintiff fails to timely comply with this order, the Court will dismiss this case without

24

prejudice.” (ECF No. 13 at 2.) Thus, Plaintiff had adequate warning that dismissal would

25

result from his noncompliance with the Court’s order to file an updated address within

26

thirty (30) days.

27

///

28

///

1

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

2

Plaintiff’s failure to file an updated address in compliance with this Court’s August 31,

3

2016, order.

4
5
6

It is further ordered that the motion to proceed in forma pauperis (ECF No. 1) is
denied as moot.
It is further ordered that the Clerk of Court enter judgment accordingly.

7
8

DATED THIS 12th day of October 2016.

9
10

MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3