Bishop v. Alexander et al

Filing 7

ORDER that this action is dismissed without prejudice based on Plaintiff's failure to file an application to proceed in forma pauperis for non-prisoners or pay the full fling fee in compliance with this Court's December 3, 2018, order; Clerk directed to enter judgment and close this case. Signed by Judge Miranda M. Du on 1/11/2019. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DERICK BISHOP,
Case No. 3:18-cv-00030-MMD-CBC

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Plaintiff,
ORDER
v.
SEAN ALEXANDER, et al.,
Defendants.

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

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state prisoner. On December 3, 2018, this Court issued an order denying Plaintiff’s

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application to proceed in forma pauperis as a prisoner as moot because Plaintiff was no

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longer incarcerated. (ECF No. 6.) The Court ordered Plaintiff to file a fully complete

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

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$400.00 within thirty days from the date of that order. (Id.) The thirty-day period has now

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expired, and Plaintiff has not filed an application to proceed in forma pauperis for non-

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prisoners, paid the full filing fee, or otherwise responded to the Court’s order.

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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. 1992)

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

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

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

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

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failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir.

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1986) (affirming dismissal for lack of prosecution and failure to comply with 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). The fourth factor—the public policy favoring

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

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of 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 F.2d

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at 1424. The Court’s order requiring Plaintiff to file an application to proceed in forma

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pauperis for non-prisoners or pay the full filing fee within thirty days expressly stated: “IT

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IS FURTHER ORDERED that, if Plaintiff fails to timely comply with this order, the Court

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shall dismiss this case without prejudice.” (ECF No. 6 at 2.) Thus, Plaintiff had adequate

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warning that dismissal would result from his noncompliance with the Court’s order to file

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

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within thirty days.

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

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Plaintiff’s failure to file an application to proceed in forma pauperis for non-prisoners or

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pay the full fling fee in compliance with this Court’s December 3, 2018, order.

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

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DATED THIS 11th day of January 2019.

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_________________________________
MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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