Wessley v. Baca et al
Filing
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ORDER dismissing with prejudice this action based on Plaintiff's failure to file an IFP application or pay the full filing fee in compliance with the Court's ECF No. 12 Order; directing Clerk to enter judgment accordingly. Signed by Judge Robert C. Jones on 5/22/2018. (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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WESLEY WESSLEY,
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Case No. 3:17-cv-00113-RCJ-VPC
Plaintiff,
ORDER
v.
ISIDRO BACA et al.,
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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 March 27, 2018, this Court issued an order directing Plaintiff
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to file a fully complete application to proceed in forma pauperis for non-prisoners or pay
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the full filing fee of $400.00 within thirty (30) days from the date of that order. (ECF No.
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12 at 11). The thirty-day period has now expired, and Plaintiff has not filed an application
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to proceed in forma pauperis for non-prisoners, paid the full filing fee, or otherwise
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responded to the 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
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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 an application to proceed in forma
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pauperis for non-prisoners or pay the full filing fee within thirty (30) days expressly stated:
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“It is further ordered that, if Plaintiff fails to timely file a non-prisoner in forma pauperis
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application, the Court shall dismiss this action with prejudice.” (ECF No. 12 at 11). Thus,
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Plaintiff had adequate warning that dismissal would result from his noncompliance with
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the Court’s order to file an application to proceed in forma pauperis for non-prisoners or
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pay the full filing fee within thirty (30) 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 an application to proceed in forma pauperis for non-prisoners or
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pay the full filing fee in compliance with this Court’s March 27, 2018, order.
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It is further ordered that the Clerk of Court shall enter judgment accordingly.
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DATED THIS May day of May 2018.
____ 22, 2018.
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UNITED STATES DISTRICT JUDGE
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