Graeber v. McDaniel et al

Filing 8

ORDER that this action is dismissed with prejudice based on Plaintiff's failure to file a second amended complaint; the motion to proceed in forma pauperis ECF No. 1 is denied as moot; Clerk directed to enter judgment. Signed by Judge Robert C. Jones on 9/6/2018. (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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***

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JASON GRAEBER,

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Case No. 3:16-cv-00163-RCJ-WGC
Plaintiff,

ORDER

v.
E.K. MCDANIEL et al.,

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Defendants.

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This action is a pro se civil rights first amended complaint filed pursuant to 42

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U.S.C. § 1983 by a state prisoner. On February 12, 2018, the Court issued an order

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dismissing the first amended complaint with leave to amend and directed Plaintiff to file a

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second amended complaint within thirty days. (ECF No. 6 at 7). The thirty-day period

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has now expired, and Plaintiff has not filed a second amended complaint.1

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District courts have the inherent power to control their dockets and “[i]n the

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exercise of that power, they may impose sanctions including, where appropriate . . .

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dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831

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(9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure

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to prosecute an action, failure to obey a court order, or failure to comply with local rules.

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See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance

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On March 6, 2018, Plaintiff filed a “reply” seeking clarification that the screening
order in this case was “not being mixed up” with a 2018 case he filed, 3:18-cv-00027MMD-WGC. (ECF No. 7). The screening order entered in this case (ECF No. 6) applies
to this case, 3:16-cv-163-RCJ-WGC.
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with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal

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for failure to comply with an order requiring amendment of complaint); Carey v. King, 856

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F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring

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pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833

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F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson

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v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and

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failure to comply with local rules).

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

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

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

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

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

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Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130;

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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. See

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

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favoring disposition of cases on their merits – is greatly outweighed by the factors in favor

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of dismissal discussed herein. Finally, a court’s warning to a party that his failure to obey

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the court’s order will result in dismissal satisfies the “consideration of alternatives”

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requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779

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F.2d at 1424. The Court’s order requiring Plaintiff to file a second amended complaint

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within thirty days expressly stated: “It is further ordered that if Plaintiff chooses not to file

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a second amended complaint curing the stated deficiencies of the first amended

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complaint, this action shall be dismissed with prejudice for failure to state a claim.” (ECF

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No. 6 at 7). Thus, Plaintiff had adequate warning that dismissal would result from his

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noncompliance with the Court’s order to file a second amended complaint within thirty

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days.

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It is therefore ordered that this action is dismissed with prejudice based on

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Plaintiff’s failure to file a second amended complaint in compliance with this Court’s

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February 12, 2018, order and for failure to state a claim.

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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 shall enter judgment accordingly.

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DATED THIS 6thxx day of March 2018.
XX day of September, 2018.

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UNITED STATES DISTRICT JUDGE

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