Almy v. Adams et al

Filing 16

ORDERED that the Motions to Recuse (ECF No. 22 in Case No. 3:17-cv-382 and ECF No. 14 in Case No. 3:17-cv-390) are DENIED. IT IS FURTHER ORDERED that the Motion for Extension of Time (ECF No. 21 in Case No. 3:17-cv-382) is DENIED; Case No. 3:17-cv-382 is DISMISSED with prejudice for failure to file an amended complaint in compliance with this Court's orders and for failure to state a claim; and the Clerk shall enter judgment and close the case. IT IS FURTHER ORDERED that the Motion for Extension of Time (ECF No. 13 in Case No. 3:17-cv-390) is GRANTED. The "First Amended" complaint is due by 2/11/2019. The Clerk shall again send Plaintiff the approved form for filing a § ; 1983 complaint, instructions for the same, and a copy of the Complaint (ECF No. 12 in Case No. 3:17-cv-390). (Docs mailed to P 1/15/2019.) Signed by Judge Robert C. Jones on 1/14/2019. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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______________________________________
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KEVIN ALMY,
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Plaintiff,
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vs.
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MINOR ADAMS et al.,
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Defendants.
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_____________________________________ )
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KEVIN ALMY,
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Plaintiff,
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vs.
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MINOR ADAMS et al.,
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Defendants.
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3:17-cv-00382-RCJ-CBC
ORDER

3:17-cv-00390-RCJ-WGC
ORDER

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I.

CASE NO. 3:17-cv-382

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Plaintiff Kevin Almy, a prisoner proceeding in pro se sued multiple Defendants under 42

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U.S.C. § 1983 for various civil rights violations. Upon screening under 28 U.S.C. § 1915A, the

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Court dismissed the Complaint, with leave to amend in part. Plaintiff did not amend within 28

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days, as ordered. Rather, he appealed, and the Court of Appeals dismissed the appeal for lack of

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jurisdiction. Upon receiving the Court of Appeals’ order, the Magistrate Judge granted Plaintiff

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another 28 days to amend, increasing the total time to 91 days. Plaintiff again did not timely
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amend. Rather, nine days after the time to amend expired a second time, he filed the present

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motions to extend time to amend and for the undersigned to recuse. Plaintiff claims various

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health issues have made him lethargic and have impaired his cognitive abilities.

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The Court denies the motion to recuse. Defendant argues that the Court’s adverse rulings

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against him in this case (and against inmates in other cases) implies bias, but that is not the law.

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Habrouck v. Texaco, Inc., 842 F.2d 1034, 1045–46 (9th Cir. 1987). The Court also denies the

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motion to extend time, because the request was made after time to amend expired, and Plaintiff

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has not shown excusable neglect. Local R. IA 6-1(a). Whatever impairments Plaintiff has, they

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did not impede his ability to file an appeal within the time the amendment was due. They

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therefore cannot have prevented him from filing a timely amendment or timely requesting an

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extension of time. There was no excusable neglect. Plaintiff made a conscious, tactical decision

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to appeal rather than amend.

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Finally, the Court will dismiss the remaining claims in the ‘382 Case with prejudice.

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District courts have the inherent power to control their dockets and “[i]n the exercise of that

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power, they may impose sanctions including, where appropriate . . . dismissal” of a case.

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Thompson v. Hous. Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 1986). A court may

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dismiss an action, with prejudice, based on a party’s failure to prosecute an action, failure to

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obey a court order, or failure to comply with local rules. Ghazali v. Moran, 46 F.3d 52, 53–54

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(9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258,

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1260–61 (9th Cir. 1992) (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) (dismissal for failure to

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comply with local rule requiring pro se plaintiffs to keep court apprised of address); Malone v.

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U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court

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order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of

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prosecution and failure to comply with local rules). In determining whether to dismiss an action

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for lack of prosecution, failure to obey a court order, or failure to comply with local rules, the

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court must consider several factors: (1) the public’s interest in expeditious resolution of

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litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants;

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(4) the public policy favoring disposition of cases on their merits; and (5) the availability of less

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drastic alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423–24; Malone, 833

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

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since a presumption of injury arises from the occurrence of unreasonable delay in filing a

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pleading ordered by the court or prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524

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(9th Cir. 1976). The fourth factor—public policy favoring disposition of cases on their merits—

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is greatly outweighed by the factors in favor of dismissal discussed herein. Finally, a court’s

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warning to a party that his failure to obey the court’s order will result in dismissal satisfies the

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“consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132–

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33; Henderson, 779 F.2d at 1424. The Court’s first order requiring Plaintiff to file an amended

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complaint stated, “If Plaintiff does not file an amended complaint within twenty-eight (28) days

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of the date of this Order, the Court may dismiss with prejudice without further notice.” (Order

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15:21–23, ECF No. 13 in Case No. 3:17-cv-382). The Magistrate Judge gave Plaintiff the same

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warning for a second time in the most recent extension. (Order 1:21–23, 2:1–2, ECF No. 19 in

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Case No. 3:17-cv-382). Thus, Plaintiff had adequate warning that dismissal would result from

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his noncompliance with the Court’s orders to file an amended complaint.

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II.

CASE NO. 3:17-cv-390
In this case, Plaintiff also sued multiple Defendants under § 1983. Upon screening under

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§ 1915(e), 1 the Court dismissed, with leave to amend within 30 days. On the day amendment

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was due, Plaintiff filed the present motions to extend time to amend and for the undersigned to

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recuse. The motions mirror those filed in the ‘382 Case.
The Court denies the motion to recuse for the same reason it denies the motion to recuse

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in the ‘382 Case but grants the motion for an extension of time to amend. Plaintiff need not

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show excusable neglect, because his request to extend time was timely filed within the original

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time granted to amend. Local R. IA 6-1(a).

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1 Although the allegations related to Plaintiff’s time in prison, he was no longer a prisoner at the
time of screening, but the Complaint was still subject to screening because he sought to proceed
in forma pauperis.
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CONCLUSION

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IT IS HEREBY ORDERED that the Motions to Recuse (ECF No. 22 in Case No. 3:17cv-382 and ECF No. 14 in Case No. 3:17-cv-390) are DENIED.

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IT IS FURTHER ORDERED that the Motion for Extension of Time (ECF No. 21 in Case

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No. 3:17-cv-382) is DENIED; Case No. 3:17-cv-382 is DISMISSED with prejudice for failure to

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file an amended complaint in compliance with this Court’s orders and for failure to state a claim;

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and the Clerk shall enter judgment and close the case.

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IT IS FURTHER ORDERED that the Motion for Extension of Time (ECF No. 13 in Case

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No. 3:17-cv-390) is GRANTED. The first amended complaint is due within twenty-eight (28)

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days of this Order. The Clerk shall again send Plaintiff the approved form for filing a § 1983

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complaint, instructions for the same, and a copy of the Complaint (ECF No. 12 in Case No. 3:17-

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cv-390). Plaintiff must use the approved form and write the words “First Amended” above the

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words “Civil Rights Complaint” in the caption. Failure to timely amend will result in dismissal

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with prejudice without further notice.

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IT IS SO ORDERED.

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Dated this 14th day of December, 2018.
Dated this 11th day of January, 2019.

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_____________________________________
ROBERT C. JONES
United States District Judge

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