Collins v. Collins et al

Filing 5

ORDER denying ECF No. 4 Plaintiff's Emergency Motion to Stay. Plaintiff will have until September 14, 2016 to file a notice of voluntary dismissal or a notice indicating his wish to proceed with this action. If Plaintiff fails to timely comply with this order, or chooses not to file a notice of any kind, the Court will dismiss this action without prejudice. Signed by Judge Miranda M. Du on 08/25/2016. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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RONALD COLLINS,

Case No. 3:16-cv-00111-MMD-WGC

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Plaintiff,
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ORDER

v.
JOSHUA COLLINS, et al.,

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Defendants.

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I.

DISCUSSION

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In February 2016, Plaintiff, who is a prisoner in the custody of the Nevada

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Department of Corrections (“NDOC”), submitted a civil rights complaint pursuant to 42

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U.S.C. § 1983 and an application to proceed in forma pauperis.. (ECF Nos. 1, 1-1.) On

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July 25, 2016, Plaintiff filed an emergency motion requesting a 120 day stay of the case

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to allow him to recover from surgery. (ECF No. 4.)

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Pursuant to Federal Rule of Civil Procedure 6, the Court may, for good cause,

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extend the time for an act to be done. Fed. R. Civ. P. 6(b)(1). The Court finds, however,

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that the time requested by Plaintiff is too extensive to be granted. The court must

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consider several factors when faced with a plaintiff’s failure to prosecute: (1) the public’s

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

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(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

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

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F.2d at 1260-61; Ghazali, 46 F.3d at 53.

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Here, 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

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docket, weigh against Plaintiff’s request for an extended stay. The third factor, risk of

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prejudice to defendants, also weighs in favor of dismissal, since a presumption of injury

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arises from the occurrence of unreasonable delay in prosecuting an action. See

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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 factors

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in favor of dismissal discussed herein.

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Plaintiff is given an opportunity to voluntarily dismiss this case without prejudice

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by filing a notice of voluntary dismissal within twenty (20) days. Plaintiff may then

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pursue his claims at a later date, when he has fully recovered from surgery. Should

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Plaintiff wish to continue with this action now, he should notify the Court of his wish to

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proceed within twenty (20) days. If Plaintiff sends a timely notice of his wish to proceed,

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the Court will screen his complaint. If Plaintiff fails to file a timely notice or files a

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voluntary dismissal, the Court will dismiss this case without prejudice to Plaintiff to later

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file a new action.

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II.

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CONCLUSION
For the foregoing reasons, it is ordered that Plaintiff’s emergency motion to stay

(ECF No. 4) is denied.

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It is further ordered that Plaintiff will have twenty (20) days from the date of entry

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of this order to file a notice of voluntary dismissal or a notice indicating his wish to

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proceed with this action now.

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It is further ordered that if Plaintiff fails to timely comply with this order, or

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chooses not to file a notice of any kind, the Court will dismiss this action without

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prejudice.

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DATED THIS 25th day of August 2016.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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