Jose v. Filson et al

Filing 8

ORDER that this action is dismissed without prejudice based on Plaintiff's failure to comply with Court's 06/12/2018 order; Clerk directed to enter judgment. Signed by Judge Miranda M. Du on 7/23/2018. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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EDWARD JOSE,
Plaintiff,

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ORDER

v.

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Case No. 3:18-cv-00178-MMD-VPC

TIMOTHY FILSON, et al.,
Defendants.

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

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state prisoner. (ECF Nos. 1, 1-1.) On June 12, 2018, this Court issued an order directing

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Plaintiff Edward Jose to file a fully complete application to proceed in forma pauperis or

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pay the full filing fee of $400.00 within thirty (30) days from the date of that order. (ECF

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No. 6 at 2.) The thirty-day period has now expired and Plaintiff has not filed an application

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to proceed in forma pauperis, paid the full filing fee, or otherwise responded to the Court’s

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order.

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

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

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

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

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failure to obey a court order, or failure to comply with local rules. See Ghazali v. Moran,

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46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v.

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Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an

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order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir.

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1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court

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apprised of address); Malone v. U.S. Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)

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(dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421,

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1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local

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

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

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In the instant case, the Court finds that the first two factors 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. A presumption of injury arises from the occurrence of unreasonable delay in

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filing a pleading ordered by the court or prosecuting an action. See Anderson v. Air West,

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542 F.2d 522, 524 (9th Cir. 1976). The fourth factor—public policy favoring disposition of

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cases on their merits—is greatly outweighed by the factors in favor of dismissal discussed

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herein. Finally, a court’s warning to a party that his failure to obey the court’s order will

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result in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963

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F.2d at 1262; Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. The Court’s

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order requiring Plaintiff to file an application to proceed in forma pauperis or pay the full

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filing fee within thirty (30) days expressly stated: “IT IS FURTHER ORDERED that if

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Plaintiff does not timely comply with this order, dismissal of this action may result.” (ECF

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No. 6 at 2.) Thus, Plaintiff had adequate warning that dismissal would result from his

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noncompliance with the Court’s order.

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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 or pay the full filing fee

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in compliance with this Court’s June 12, 2018 order.

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It is further ordered that the Clerk of Court enter judgment accordingly.

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DATED THIS 23rd day of July 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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