Edwards v. Leavitt et al

Filing 13

ORDERED that this action is dismissed with prejudice based on Plaintiff's failure to file a second amended complaint in compliance with this Court's December 20, 2019, order (ECF No. 11 ) and for failure to state a claim. The motion to proceed in forma pauperis (ECF No. 1 ) is denied as moot. The motion for evidentiary hearing (ECF No. 10 ) is denied as moot. Clerk of Court shall close the case and enter judgment accordingly Signed by Judge Robert C. Jones on 2/6/2020. (Copies have been distributed pursuant to the NEF - DRM) Modified on 2/6/2020 to remove exparte restriction, and to reflect copy mailed to P at ESP on 2/6/2020 (DRM).

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CARL D. EDWARDS,

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Case No. 3:17-cv-00147-RCJ-CLB
Plaintiff

ORDER

v.
MESHELL LEAVITT et al.,

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Defendants

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This action began with a pro se civil rights complaint filed pursuant to 42 U.S.C. §

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1983 by a state prisoner. On December 20, 2019, the Court issued an order dismissing

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the amended complaint with leave to amend and directed Plaintiff to file a second

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amended complaint within thirty days. (ECF No. 11 at 6). The thirty-day period has now

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expired, and Plaintiff has not filed a second amended complaint.

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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) (affirming dismissal for

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

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1992) (affirming dismissal for failure to comply with an order requiring amendment of

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complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (affirming dismissal

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for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of

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address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (affirming

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dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421,

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1424 (9th Cir. 1986) (affirming dismissal for lack of prosecution and failure to comply with

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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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See Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at

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130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.

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Here, the Court finds that the first two factors, the public’s interest in expeditiously

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resolving this litigation and the Court’s interest in managing the docket, weigh in favor of

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dismissal. The third factor, risk of prejudice to Defendants, also weighs in favor of

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dismissal, since a presumption of injury arises from the occurrence of unreasonable delay

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in filing a pleading ordered by the court or prosecuting an action. See Anderson v. Air

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West, 542 F.2d 522, 524 (9th Cir. 1976).

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disposition of cases on their merits—is greatly outweighed by the factors in favor of

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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 a second amended complaint

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within thirty days expressly stated: “It is further ordered that, if Plaintiff fails to file a second

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amended complaint curing the deficiencies outlined in this order, this action will be

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dismissed with prejudice for failure to state a claim.” (ECF No. 11 at 6). Thus, Plaintiff

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had adequate warning that dismissal would result from his noncompliance with the

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Court’s order to file a second amended complaint within thirty days.

The fourth factor—public policy favoring

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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 a second amended complaint in compliance with this Court’s

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December 20, 2019, order and for failure to state a claim.

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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 motion for evidentiary hearing (ECF No. 10) is denied

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as moot.
It is further ordered that the Clerk of Court shall close the case and enter judgment
accordingly.

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DATED THIS 6th day of February, 2020.

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UNITED STATES DISTRICT JUDGE

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