Augborne v. Filson et al

Filing 4

ORDER dismissing without prejudice this action based on Plaintiff's failure to file another IFP application or pay the full filing fee; directing Clerk to enter judgment accordingly. Signed by Judge Miranda M. Du on 8/8/2017. (Copies have been distributed pursuant to the NEF - KR)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 10 11 12 BRIT F. AUGBORNE, III, Case No. 3:17-cv-00393-MMD-VPC Plaintiff, ORDER v. FILSON, et al., Defendants. 13 14 This action is a pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983 by 15 a state prisoner. On June 27, 2017, this Court issued an order denying the application to 16 proceed in forma pauperis, without prejudice, because the application was incomplete. 17 (ECF No. 3 at 1-2.) The Court ordered Plaintiff to file a fully complete application to 18 proceed in forma pauperis or pay the full filing fee of $400.00 within thirty (30) days from 19 the date of that order. (Id. at 2.) The thirty-day period has now expired, and Plaintiff has 20 not filed another application to proceed in forma pauperis, paid the full filing fee, or 21 otherwise responded to the Court’s order. 22 District courts have the inherent power to control their dockets and “[i]n the 23 exercise of that power, they may impose sanctions including, where appropriate . . . 24 dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831 25 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure 26 to prosecute an action, failure to obey a court order, or failure to comply with local rules. 27 See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance 28 with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for 1 failure to comply with an order requiring amendment of complaint); Carey v. King, 856 2 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring 3 pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833 4 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson 5 v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and 6 failure to comply with local rules). 7 In determining whether to dismiss an action for lack of prosecution, failure to obey 8 a court order, or failure to comply with local rules, the court must consider several factors: 9 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 10 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 11 disposition of cases on their merits; and (5) the availability of less drastic alternatives. 12 Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; 13 Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 14 In the instant case, the Court finds that the first two factors, the public’s interest in 15 expeditiously resolving this litigation and the Court’s interest in managing the docket, 16 weigh in favor of dismissal. The third factor, risk of prejudice to Defendants, also weighs 17 in favor of dismissal, since a presumption of injury arises from the occurrence of 18 unreasonable delay in filing a pleading ordered by the court or prosecuting an action. See 19 Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor—public policy 20 favoring disposition of cases on their merits—is greatly outweighed by the factors in favor 21 of dismissal discussed herein. Finally, a court’s warning to a party that his failure to obey 22 the court’s order will result in dismissal satisfies the “consideration of alternatives” 23 requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779 F.2d 24 at 1424. The Court’s order requiring Plaintiff to file another application to proceed in forma 25 pauperis or pay the full filing fee within thirty (30) days expressly stated: “IT IS FURTHER 26 ORDERED that if Plaintiff does not timely comply with this order, dismissal of this action 27 may result.” (ECF No. 3 at 2.) Thus, Plaintiff had adequate warning that dismissal would 28 /// 2 1 result from his noncompliance with the Court’s order to file another application to proceed 2 in forma pauperis or pay the full filing fee within thirty (30) days. 3 It is therefore ordered that this action is dismissed without prejudice based on 4 Plaintiff’s failure to file another application to proceed in forma pauperis or pay the full 5 filing fee in compliance with this Court’s June 27, 2017, order. 6 It is further ordered that the Clerk of Court enter judgment accordingly. 7 DATED THIS 8th day of August 2017. 8 9 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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