Cochrane v. Nevada Department of Corrections et al

Filing 16

ORDER dismissing case without prejudice based on Plaintiff's failure to file a complete IFP application or pay the full filing fee of $400.00. Signed by Judge Miranda M. Du on 7/13/2016. (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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***

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TERRY R. COCHRANE,
Plaintiff,

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Case No. 3:15-CV-00522-MMD-VPC
ORDER

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

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I.

DISCUSSION

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On May 25, 2016, the Court issued an order permitting Plaintiff’s Eighth

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Amendment claim of deliberate indifference to proceed and ordered Plaintiff to either:

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(1) file a fully complete application to proceed in forma pauperis for non-prisoners; or (2)

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pay the full filing fee of $400.00. (ECF No. 14 at 13:24-14:2.) The Court specifically

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stated that “if Plaintiff does not timely comply with the order to either: (1) file a fully

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complete application to proceed in forma pauperis for non-prisoners; or (2) pay the full

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filing fee of $400.00, dismissal of this action will result.” (Id. at 13:10-12.)

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Plaintiff did not file a complete application to proceed in forma pauperis for non-

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prisoners or pay the full filing fee of $400.00. District courts have the inherent power to

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control their dockets and “[i]n the exercise of that power, they may impose sanctions

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including, where appropriate . . . dismissal” of a case. Thompson v. Hous. Auth. of City

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of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with

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prejudice, based on a party’s failure to prosecute an action, failure to obey a court order,

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or failure to comply with the local rules. See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th

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Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d

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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)

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(dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421,

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1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local

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rules).

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

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

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

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

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

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

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833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; 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,

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

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

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

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

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

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

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

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

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Henderson, 779 F.2d at 1424.

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The Court’s order requiring Plaintiff to file a complete application to proceed in

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forma pauperis for non-prisoners or pay the full filing fee of $400.00 expressly stated

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that failure to comply would result in dismissal. (ECF No. 14 at 13:10-12.) Thus, Plaintiff
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had adequate warning that dismissal would result from his noncompliance with the

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Court’s order to file a complete application to proceed in forma pauperis for non-

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prisoners or pay the full filing fee of $400.00.

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II.

CONCLUSION

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For the foregoing reasons, it is ordered that this action is dismissed without

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prejudice based on Plaintiff’s failure to file a complete application to proceed in forma

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pauperis for non-prisoners or pay the full filing fee of $400.00 in compliance with this

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Court’s May 25, 2016, order.

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DATED THIS 13th day of July, 2016.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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