Miller v. Baca et al

Filing 24

ORDER dismissing with prejudice this action based on Plaintiff's failure to file an IFP application or pay full filing fee; directing Clerk to enter judgment accordingly. Signed by Judge Miranda M. Du on 12/4/2017. (Copies have been distributed pursuant to the NEF - KR)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 DISTRICT OF NEVADA 7 *** 8 9 MARTIN K. MILLER, Plaintiff, 10 11 Case No. 3:16-cv-00458-MMD-VPC ORDER v. ISIDRO BACA et al., 12 Defendants. 13 14 This action is a pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983 by 15 a former state prisoner. On October 24, 2017, this Court issued an order denying the 16 application to proceed in forma pauperis for prisoners as moot because Plaintiff was no 17 longer incarcerated. (ECF No. 23 at 2.) The Court ordered Plaintiff to file a fully 18 complete application to proceed in forma pauperis for non-prisoners or pay the full filing 19 fee of $400.00 within thirty (30) days from the date of that order. (Id.) The thirty-day 20 period has now expired, and Plaintiff has not filed an application to proceed in forma 21 pauperis for non-prisoners, paid the full filing fee, or otherwise responded to the Court’s 22 order. 23 District courts have the inherent power to control their dockets and “[i]n the 24 exercise of that power, they may impose sanctions including, where appropriate . . . 25 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 26 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s 27 failure to prosecute an action, failure to obey a court order, or failure to comply with 28 local rules. See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for 1 noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 2 1992) (dismissal for failure to comply with an order requiring amendment of complaint); 3 Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply 4 with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v. 5 U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply 6 with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal 7 for lack of prosecution and failure to comply with local rules). 8 In determining whether to dismiss an action for lack of prosecution, failure to 9 obey a court order, or failure to comply with local rules, the court must consider several 10 factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need 11 to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy 12 favoring disposition of cases on their merits; and (5) the availability of less drastic 13 alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 14 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 15 In the instant case, the Court finds that the first two factors, the public’s interest in 16 expeditiously resolving this litigation and the Court’s interest in managing the docket, 17 weigh in favor of dismissal. The third factor, risk of prejudice to Defendants, also weighs 18 in favor of dismissal, since a presumption of injury arises from the occurrence of 19 unreasonable delay in filing a pleading ordered by the court or prosecuting an action. 20 See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor – public 21 policy favoring disposition of cases on their merits – is greatly outweighed by the factors 22 in favor of dismissal discussed herein. Finally, a court’s warning to a party that his 23 failure to obey the court’s order will result in dismissal satisfies the “consideration of 24 alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; 25 Henderson, 779 F.2d at 1424. The Court’s order requiring Plaintiff to file an application 26 to proceed in forma pauperis for non-prisoners or pay the full filing fee within thirty (30) 27 days expressly stated: “IT IS FURTHER ORDERED that, if Plaintiff does not timely 28 comply with this order, the Court will dismiss this action with prejudice.” (ECF No. 23 at 2 1 2.) Thus, Plaintiff had adequate warning that dismissal would result from his 2 noncompliance with the Court’s order to file an application to proceed in forma pauperis 3 for non-prisoners or pay the full filing fee within thirty (30) days. 4 It is therefore ordered that this action is dismissed with prejudice based on 5 Plaintiff’s failure to file an application to proceed in forma pauperis for non-prisoners or 6 pay the full filing fee in compliance with this Court’s October 24, 2017, order. 7 8 It is further ordered that the Clerk of Court enter judgment accordingly. DATED THIS 4th day of December 2017. 9 10 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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