Kipperman v. State of Nevada et al

Filing 7

ORDER that this action is dismissed without prejudice based on Plaintiff's failure to file an application to proceed in forma pauperis or pay the full filing fee in compliance with this Courts Order ECF No. 3 ; the Clerk is directed to enter judgment accordingly. Signed by Judge Robert C. Jones on 05/22/2017. (Copies have been distributed pursuant to the NEF - KW)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 10 11 12 13 DANIEL KIPPERMAN, ) ) Plaintiff, ) ) v. ) ) STATE OF NEVADA et al., ) ) Defendants. ) ) ___________________________________ ) 3:17-cv-00130-RCJ-VPC ORDER 14 This action is a pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983 by a 15 former state prisoner.1 On March 2, 2017, this Court issued an order directing Plaintiff to file 16 a fully complete application to proceed in forma pauperis or pay the full filing fee of $400.00 17 within thirty (30) days from the date of that order. (ECF No. 3 at 2). The thirty-day period has 18 now expired, and Plaintiff has not filed an application to proceed in forma pauperis or paid the 19 full filing fee. 20 District courts have the inherent power to control their dockets and “[i]n the exercise of 21 that power, they may impose sanctions including, where appropriate . . . dismissal” of a case. 22 Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court 23 may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, failure 24 to obey a court order, or failure to comply with local rules. See Ghazali v. Moran, 46 F.3d 52, 25 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 26 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring 27 amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal 28 1 Plaintiff was incarcerated at the time he initiated this case. (ECF No. 1-1 at 1). 1 for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of 2 address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for 3 failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) 4 (dismissal for lack of prosecution and failure to comply with local rules). 5 In determining whether to dismiss an action for lack of prosecution, failure to obey a 6 court order, or failure to comply with local rules, the court must consider several factors: (1) 7 the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its 8 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 9 cases on their merits; and (5) the availability of less drastic alternatives. Thompson, 782 F.2d 10 at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260- 11 61; Ghazali, 46 F.3d at 53. 12 In the instant case, the Court finds that the first two factors, the public’s interest in 13 expeditiously resolving this litigation and the Court’s interest in managing the docket, weigh 14 in favor of dismissal. The third factor, risk of prejudice to Defendants, also weighs in favor of 15 dismissal, since a presumption of injury arises from the occurrence of unreasonable delay in 16 filing a pleading ordered by the court or prosecuting an action. See Anderson v. Air West, 542 17 F.2d 522, 524 (9th Cir. 1976). The fourth factor – public policy favoring disposition of cases 18 on their merits – is greatly outweighed by the factors in favor of dismissal discussed herein. 19 Finally, a court’s warning to a party that his failure to obey the court’s order will result in 20 dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; 21 Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The Court’s order requiring 22 Plaintiff to file an application to proceed in forma pauperis or pay the full filing fee within thirty 23 (30) days expressly stated: “IT IS FURTHER ORDERED that if Plaintiff does not timely comply 24 with this order, dismissal of this action may result.” (ECF No. 3 at 2). Thus, Plaintiff had 25 adequate warning that dismissal would result from his noncompliance with the Court’s order 26 to file an application to proceed in forma pauperis or pay the full filing fee within thirty (30) 27 days. 28 It is therefore ordered that this action is dismissed without prejudice based on Plaintiff’s 2 1 failure to file an application to proceed in forma pauperis or pay the full filing fee in compliance 2 with this Court’s March 2, 2017, order. 3 It is further ordered that the Clerk of Court shall enter judgment accordingly. 4 5 DATED: This 22nd day of May, 2017. DATED: This _____ day of April, 2017. 6 7 _________________________________ United States District Judge 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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