Minchew v. Walt et al

Filing 7

ORDER dismissing without prejudice this action for Plaintiff's failure to file an IFP application or pay the full filing fee and file an updated address; directing Clerk to enter judgment accordingly. Signed by Judge Miranda M. Du on 3/7/2017. (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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RICKY L. MINCHEW,
Plaintiff,

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Case No. 3:16-cv-00326-MMD-VPC
ORDER

v.
KYLE WALT, et al.,
Defendants.

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

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a former state prisoner. On January 25, 2017, this Court issued an order denying the

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application to proceed in forma pauperis for prisoners as moot because Plaintiff was no

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longer incarcerated. (ECF No. 5 at 2.) The Court ordered Plaintiff to file a fully complete

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application to proceed in forma pauperis for non-prisoners or pay the full filing fee of

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$400.00 on or before February 24, 2017. (Id.) The Court also directed Plaintiff to file his

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updated address with the Court on or before February 24, 2017. (Id.) The deadline has

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now expired, and Plaintiff has not filed an application to proceed in forma pauperis for

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non-prisoners, paid the full filing fee, updated his address, or otherwise responded to the

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Court’s order.

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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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with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for

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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

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

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obey 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 F.2d

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at 1424. The Court’s order requiring Plaintiff to file an application to proceed in forma

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pauperis for non-prisoners or pay the full filing fee and file an updated address on or

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before February 24, 2017, expressly stated: “IT IS FURTHER ORDERED that, if Plaintiff
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fails to timely comply with this order, the Court shall dismiss this case without prejudice.”

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(ECF No. 5 at 2.) Thus, Plaintiff had adequate warning that dismissal would result from

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his noncompliance with the Court’s order to file an application to proceed in forma

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pauperis for non-prisoners or pay the full filing fee and file an updated address on or

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before February 24, 2017.

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

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Plaintiff’s failure to file an application to proceed in forma pauperis for non-prisoners or

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pay the full filing fee and file an updated address in compliance with this Court’s January

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25, 2017, order.

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It is further ordered that the Clerk of Court enter judgment accordingly.

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DATED THIS 7th day of March 2017.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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