Thomas v. McDaniel et al

Filing 6

ORDER - This action is dismissed without prejudice based on Plaintiff's failure to update his address and his failure to file an application to proceed in forma pauperis for non-prisoners or pay the full filing fee in compliance with this Court's June 18, 2018 order. It is further ordered that the Clerk of Court enter judgment accordingly. Signed by Judge Miranda M. Du on 7/26/2018. (Copies have been distributed pursuant to the NEF - DRM)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8

***

9

CHRISTOPHER THOMAS,

10
11
12
13

Case No. 3:17-cv-00472-MMD-VPC
Plaintiff,

ORDER

v.
E.K. MCDANIEL, et al.,
Defendants.

14
15
16

This action is a pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983 by

17

a former state prisoner. On June 18, 2018, this Court issued an order denying the

18

application to proceed in forma pauperis for prisoners as moot because Plaintiff was no

19

longer incarcerated. (ECF No. 4 at 2). The Court ordered Plaintiff to file a fully complete

20

application to proceed in forma pauperis for non-prisoners or pay the full filing fee of

21

$400.00 within thirty (30) days from the date of that order. (Id.) The Court also ordered

22

Plaintiff to file an updated address within thirty (30) days from the date of that order. (Id.)

23

The thirty-day period has now expired, and Plaintiff has not filed an application to proceed

24

in forma pauperis for non-prisoners, paid the full filing fee, filed an updated address, or

25

otherwise responded to the Court’s order.

26

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

27

exercise of that power, they may impose sanctions including, where appropriate . . .

28

dismissal” of a case. Thompson v. Hous. Auth. of City of Los Angeles, 782 F.2d 829, 831

1

(9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure

2

to prosecute an action, failure to obey a court order, or failure to comply with local rules.

3

See Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance

4

with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for

5

failure to comply with an order requiring amendment of complaint); Carey v. King, 856

6

F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring

7

pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Serv., 833 F.2d

8

128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v.

9

Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure

10

to comply with local rules).

11

In determining whether to dismiss an action for lack of prosecution, failure to obey

12

a court order, or failure to comply with local rules, the court must consider several factors:

13

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

14

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

15

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

16

Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130;

17

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

18

In the instant case, the Court finds that the first two factors, the public’s interest in

19

expeditiously resolving this litigation and the Court’s interest in managing the docket,

20

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

21

in favor of dismissal, since a presumption of injury arises from the occurrence of

22

unreasonable delay in filing a pleading ordered by the court or prosecuting an action. See

23

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

24

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

25

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

26

the court’s order will result in dismissal satisfies the “consideration of alternatives”

27

requirement. Ferdik, 963 F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779

28

F.2d at 1424. The Court’s order requiring Plaintiff to update his address and to file an

2

1

application to proceed in forma pauperis for non-prisoners or pay the full filing fee within

2

thirty (30) days expressly stated that, if Plaintiff failed to timely comply with the order,

3

dismissal may result. (ECF No. 4 at 2). Thus, Plaintiff had adequate warning that

4

dismissal would result from his noncompliance with the Court’s order to file an updated

5

address and to file an application to proceed in forma pauperis for non-prisoners or pay

6

the full filing fee within thirty (30) days.

7

It is therefore ordered that this action is dismissed without prejudice based on

8

Plaintiff’s failure to update his address and his failure to file an application to proceed in

9

forma pauperis for non-prisoners or pay the full filing fee in compliance with this Court’s

10
11

June 18, 2018 order.
It is further ordered that the Clerk of Court enter judgment accordingly.

12
13

DATED THIS 26th day of July 2018.

14
15
16

MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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

3