Westmoreland v. Reno Police Department. et al

Filing 12

ORDER OF DISMISSAL. Plaintiff's Eighth Amendment claim is dismissed without prejudice and without leave to amend based on Plaintiff's failure to amend this claim in compliance with this Courts order; Clerk directed to enter judgment and close case. Signed by Judge Miranda M. Du on 2/8/2018. (Copies have been distributed pursuant to the NEF - KW)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

DISTRICT OF NEVADA

10
11
12
13
14

TREVANTAE T. WESTMORELAND,

***
Case No. 3:17-cv-00432-MMD-VPC

Plaintiff,

ORDER OF DISMISSAL

v.
LAKE’S CROSSING CENTER, et al.,
Defendants.

15
16
17
18
19
20
21
22
23
24
25
26
27
28

On December 27, 2017, the Court dismissed claims in Plaintiff’s complaint with
prejudice, except for Plaintiff’s Eighth Amendment claim against Lake Crossing Center
which the Court dismissed without prejudice and with leave to amend. (ECF No. 10.)
With respect to that claim, the Court gave Plaintiff 30 days to file an amended complaint.
(Id. at 3.) That deadline has has now expired, and Plaintiff has not filed an amended
complaint or otherwise responded to the Court’s order.
District courts have the inherent power to control their dockets and “[i]n the
exercise of that power, they may impose sanctions including, where appropriate . . .
dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831
(9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure
to prosecute an action, failure to obey a court order, or failure to comply with local rules.
See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance
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

3

requiring pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal

4

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

5

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

6

prosecution and 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

9

factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need

10

to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy

11

favoring disposition of cases on their merits; and (5) the availability of less drastic

12

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

13

F.2d at 130; 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 defendant, also weighs in

17

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.

19

See Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor ─ public

20

policy favoring disposition of cases on their merits ─ is greatly outweighed by the factors

21

in favor of dismissal discussed herein. Finally, a court’s warning to a party that his failure

22

to obey the court’s order will result in dismissal satisfies the “consideration of

23

alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33;

24

Henderson, 779 F.2d at 1424. The Court’s dismissal order cautioned Plaintiff that

25

“Plaintiff’s failure to file an amended complaint,. . . , within the 30 day time allowed will

26

result in dismissal of Plaintiff’s Eighth Amendment claim without prejudice and without

27

leave to amend.” (ECF No. 10 at 3.) Thus, Plaintiff had adequate warning that dismissal

28

would result from his noncompliance with the Court’s order to amend this claim.
2

1

It is therefore ordered that Plaintiff’s Eighth Amendment claim is dismissed

2

without prejudice and without leave to amend based on Plaintiff’s failure to amend this

3

claim in compliance with this Court’s order. The Court previously dismissed the

4

remaining claims with prejudice. (ECF No. 10.)

5

The Clerk is directed to enter judgment accordingly and close this case.

6

DATED THIS 8th day of February 2018.

7
8
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3