Ortega v. NDOC Medical et al

Filing 7

ORDER this action is dismissed with prejudice based on Plaintiff's failure to file an amended complaint in compliance with this Court's February 16, 2017, order (ECF No. 4 ) and for failure to state a claim. 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. Signed by Judge Robert C. Jones on 4/5/2017. (Copies have been distributed pursuant to the NEF - DRM) Modified on 4/5/2017 to add hyperlink (DRM).

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 10 11 12 13 LUIS RAYMOND ORTEGA, ) ) Plaintiff, ) ) v. ) ) ROMEO ARANAS et al., ) ) Defendants. ) ) ___________________________________ ) 3:16-cv-00278-RCJ-WGC ORDER 14 This action is a pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983 by a state 15 prisoner. On February 16, 2017, this Court issued an order dismissing the complaint with 16 leave to amend and directed Plaintiff to file an amended complaint within thirty (30) days. 17 (ECF No. 4 at 8). The thirty-day period has now expired, and Plaintiff has not filed an 18 amended complaint or otherwise responded to the Court’s order. 19 District courts have the inherent power to control their dockets and “[i]n the exercise of 20 that power, they may impose sanctions including, where appropriate . . . dismissal” of a case. 21 Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court 22 may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, failure 23 to obey a court order, or failure to comply with local rules. See Ghazali v. Moran, 46 F.3d 52, 24 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 25 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 26 amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal 27 for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of 28 address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for 1 failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) 2 (dismissal for lack of prosecution and failure to comply with local rules). 3 In determining whether to dismiss an action for lack of prosecution, failure to obey a 4 court order, or failure to comply with local rules, the court must consider several factors: (1) 5 the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its 6 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 7 cases on their merits; and (5) the availability of less drastic alternatives. Thompson, 782 F.2d 8 at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260- 9 61; Ghazali, 46 F.3d at 53. 10 In the instant case, the Court finds that the first two factors, the public’s interest in 11 expeditiously resolving this litigation and the Court’s interest in managing the docket, weigh 12 in favor of dismissal. The third factor, risk of prejudice to Defendants, also weighs in favor of 13 dismissal, since a presumption of injury arises from the occurrence of unreasonable delay in 14 filing a pleading ordered by the court or prosecuting an action. See Anderson v. Air West, 542 15 F.2d 522, 524 (9th Cir. 1976). The fourth factor – public policy favoring disposition of cases 16 on their merits – is greatly outweighed by the factors in favor of dismissal discussed herein. 17 Finally, a court’s warning to a party that his failure to obey the court’s order will result in 18 dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; 19 Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The Court’s order requiring 20 Plaintiff to file an amended complaint within thirty (30) days expressly stated: “IT IS FURTHER 21 ORDERED that if Plaintiff fails to file an amended complaint curing the deficiencies outlined 22 in this order, this action will be dismissed with prejudice for failure to state a claim.” (ECF No. 23 4 at 9). 24 noncompliance with the Court’s order to file an amended complaint within thirty (30) days. Thus, Plaintiff had adequate warning that dismissal would result from his 25 It is therefore ordered that this action is dismissed with prejudice based on Plaintiff’s 26 failure to file an amended complaint in compliance with this Court’s February 16, 2017, order 27 and for failure to state a claim. 28 It is further ordered that the motion to proceed in forma pauperis (ECF No. 1) is denied 2 1 2 as moot. It is further ordered that the Clerk of Court shall enter judgment accordingly. 3 4 DATED: This 5th day of April, 2017. DATED: This _____ day of March, 2017. 5 6 _________________________________ UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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